A-97265, AUGUST 29, 1938, 18 COMP. GEN. 206

A-97265, AUGUST 29, 1938, 18 COMP. GEN. 206

HOLIDAY COMPENSATION - PER DIEM, ETC., EMPLOYEES OF THE PANAMA CANAL - PUBLIC RESOLUTION NO. 127 THE TERM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS" AS USED IN PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, RELATING TO HOLIDAY COMPENSATION OF SUCH EMPLOYEES, DOES NOT INCLUDE "ALIEN EMPLOYEES OF THE PANAMA CANAL WHO HERETOFORE WERE NOT ENTITLED TO GRATUITY HOLIDAY PAY.' IN VIEW OF PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, REGULAR PER DIEM, PER HOUR, OR PIECE-WORK EMPLOYEES OF THE PANAMA CANAL ARE ENTITLED ONLY TO THEIR REGULAR PAY, AND NOT ADDITIONAL GRATUITY HOLIDAY PAY, FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED AND THEN ONLY IF AND WHEN THEY "ARE RELIEVED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF" THE HOLIDAY, AND THEREFORE THEY ARE NOT ENTITLED TO PAY FOR THE HOLIDAY AS SUCH IF THEY ARE RELIEVED OR PREVENTED FROM WORKING BECAUSE THE HOLIDAY OCCURS ON A FIVE-DAY WEEK NON-WORK DAY. WHERE A PER HOUR EMPLOYEE OF THE PANAMA CANAL ON A FIVE-DAY FORTY HOUR WEEK (MONDAY TO FRIDAY) WAS PREVENTED FROM WORKING ON A DAY WITHIN HIS REGULAR TOUR OF DUTY SOLELY BECAUSE IT WAS A HOLIDAY AND RECEIVED PAY THEREFOR IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, AND WAS THEN REQUIRED TO WORK ON THE SATURDAY OF THE WEEK, HE IS ENTITLED TO OVERTIME COMPENSATION FOR THE SATURDAY, THE TIME ALLOWED FOR THE HOLIDAY BEING SYNONYMOUS WITH WORK SO FAR AS OVERTIME ALLOWANCE IS CONCERNED. IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE FORTY-HOUR WEEKLY TOUR OF DUTY ON ANY OF THE SEVEN DAYS OF ANY WEEK, AND IF IN THE EXERCISE OF THAT DISCRETION, IN AN EMERGENCY, THE DAYS OF WORK IN ANY WEEK ARE ADJUSTED SO THAT A HOLIDAY FALLS ON A NON-WORK DAY, THE FORTY HOUR WEEKLY TOUR OF DUTY TO BE ON THE OTHER DAYS OF THAT WEEK, THE EMPLOYEE WOULD BE ENTITLED TO ONLY HIS REGULAR PAY FOR THE FIVE DAYS WORKED WITH NO PAY FOR THE HOLIDAY WHICH FELL ON HIS NON-WORK DAY. PER HOUR EMPLOYEES OF THE PANAMA CANAL ARE NOT ENTITLED TO PAY IN ADDITION TO THEIR REGULAR PAY WHERE THEY ARE REQUIRED TO PERFORM SERVICE ON A HOLIDAY WITHIN THEIR REGULAR TOUR OF DUTY. UNDER PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, PROVIDING FOR PAYMENT TO FEDERAL EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, OF COMPENSATION FOR HOLIDAYS WHEN THEY ARE "RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE" OF THE HOLIDAY, PAYMENT FOR THE HOLIDAY MAY BE MADE ON THE PRESUMPTION THAT THE EMPLOYEE WAS RELIEVED OR PREVENTED FROM WORKING THEREON SOLELY BECAUSE IT WAS A HOLIDAY ONLY WHEN THE EMPLOYEE IS ACTUALLY ON THE JOB AT THE CLOSE OF THE WORK DAY BEFORE AND AT THE BEGINNING OF THE WORK DAY AFTER THE HOLIDAY, AND IN ALL OTHER CASES IN WHICH PAY FOR THE HOLIDAY IS CLAIMED UNDER THIS STATUTE THERE SHOULD BE A SHOWING OF THE FACTS AND CIRCUMSTANCES TENDING TO ESTABLISH THAT THE EMPLOYEE WOULD HAVE WORKED ON THE DAY INVOLVED BUT FOR THE SOLE FACT THAT IT WAS A HOLIDAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE GOVERNOR OF THE PANAMA CANAL, AUGUST 29, 1938:

YOUR LETTER OF AUGUST 15, 1938, IS AS FOLLOWS:

THERE ARE SUBMITTED HEREWITH FOR YOUR CONSIDERATION AND DECISION SEVERAL QUESTIONS RELATING TO THE EFFECT OF PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, UPON THE PAY OF PER DIEM AND HOURLY EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS OF PANAMA.

THIS RESOLUTION PROVIDES:

"THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE- WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

"SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'

QUESTION 1. DOES THE TERM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS" INCLUDE ALIEN EMPLOYEES OF THE PANAMA CANAL WHO HERETOFORE WERE NOT ENTITLED TO GRATUITY HOLIDAY PAY?

IN CONNECTION WITH THIS QUESTION REFERENCE IS MADE TO THE ACTING COMPTROLLER GENERAL'S DECISION A-95654 TO THE GOVERNOR, THE PANAMA CANAL, JULY 6, 1938, WHICH STATES IN PART:

"BOTH THE ACT OF MAY 13, 1938, QUOTED IN YOUR LETTER, AND THE PUBLIC RESOLUTION OF JUNE 29, 1938, QUOTED ABOVE, ARE APPLICABLE TO THE EMPLOYEES OF THE PANAMA CANAL. THE LATTER STATUTE SUPERSEDES THE EXECUTIVE ORDERS ISSUED PURSUANT TO LAW RELATING TO GRANTING OF GRATUITY PAY FOR HOLIDAYS TO PER DIEM EMPLOYEES OF THE PANAMA CANAL. SEE DECISION MAY 23, 1938, A- 89369, 17 COMP. GEN. 970.'

THE AUTHORITY TO PAY PER DIEM EMPLOYEES OF THE PANAMA CANAL GRATUITY HOLIDAY PAY WAS CONTAINED IN THE EXECUTIVE ORDER DATED FEBRUARY 2, 1914, WHICH READS IN PART:

"12. EMPLOYEES ABOVE THE GRADE OF LABORER, APPOINTED WITH RATES OF PAY PER HOUR OR PER DAY, WILL NOT BE EMPLOYED OVER 8 HOURS IN ANY ONE CALENDAR DAY, EXCEPT IN CASE OF EMERGENCY. * * * SUCH EMPLOYEES WHO WORK ON THE DAYS PRIOR AND SUBSEQUENT TO THE HOLIDAYS SPECIFICALLY NAMED ABOVE WILL BE ALLOWED THEIR REGULAR PAY FOR 8 HOURS FOR SUCH DAYS, IN ADDITION TO PAY FOR ANY WORK PERFORMED: "

PARAGRAPH 43.2 PERSONNEL REGULATIONS, THE PANAMA CANAL, ISSUED BY THE GOVERNOR, READS IN PART:

"THE TERM "LABORER" IS INTERPRETED SO AS TO INCLUDE NOT ONLY EMPLOYEES DESIGNATED "LABORER" BUT ALSO ALL ALIEN HOURLY EMPLOYEES RECEIVING 40 CENTS OR LESS PER HOUR.'

IT IS PERTINENT TO REMARK THAT THIS DEFINITION OF "LABORER" HAS BEEN ADHERED TO CONSISTENTLY IN THE APPLICATION OF RULES REGARDING GRATUITY HOLIDAY PAY, NOTWITHSTANDING THE FACT THAT THE CIRCULAR,"RATES OF PAY, SILVER ROLL," WHICH ALSO WAS ISSUED BY THE GOVERNOR, DESIGNATES CERTAIN ALIEN HOURLY EMPLOYEES RATED AT 40 CENTS AN HOUR OR LESS AS "ARTISAN, ATTENDANT, CAULKER, CHAUFFEUR, CHECKER, DIVER, FOREMAN, ETC., ETC.'

WITH REFERENCE TO SUCH ALIEN EMPLOYEES THERE IS ALSO FOR CONSIDERATION:

(A) SECTION 1 OF EXECUTIVE ORDER NO. 7916, DATED JUNE 24, 1938, PROVIDES THAT, EFFECTIVE FEBRUARY 1, 1939, PRACTICALLY ALL POSITIONS IN THE EXECUTIVE CIVIL SERVICE, INCLUDING POSITIONS IN CORPORATIONS WHOLLY OWNED OR CONTROLLED BY THE UNITED STATES, ARE COVERED INTO THE COMPETITIVE CLASSIFIED CIVIL SERVICE. SECTION 3 OF THE ORDER FURTHER PROVIDES THAT PERSONS AFFECTED THEREBY MUST BE CITIZENS OF THE UNITED STATES.

(B) THESE EMPLOYEES ARE NOT SUBJECT TO THE RETIREMENT ACT.

(C) THEY ARE NOT AFFECTED BY THE 25 PERCENT DIFFERENTIAL OVER STATES RATES.

(D) THEY ARE NOT AFFECTED BY STATES RATES.

(E) THEY HAVE NO VACATION LEAVE PRIVILEGES.

(F) THEY ARE NOT SUBJECT TO THE 40-HOUR WEEK LAW.

(G) THE TREASURY-POST OFFICE APPROPRIATION ACT FOR 1939 APPROVED MARCH 28, 1938, PLACES CERTAIN RESTRICTIONS AGAINST THE EMPLOYMENT OF ALIENS (IN THE CONTINENTAL UNITED STATES).

(H) THEY ARE NOT AFFECTED BY THE CIVIL SERVICE LAW AND THEREFORE MAY BE EMPLOYED OR DISCHARGED WITHOUT REFERENCE THERETO.

(I) ALTHOUGH MANY OF THEM HAVE BEEN EMPLOYED WITHOUT INTERRUPTION BY THE PANAMA CANAL FOR A NUMBER OF YEARS, THEIR TENURE OF EMPLOYMENT HAS BEEN OF UNCERTAIN DURATION AT ALL TIMES.

QUESTION 2. IS THE LANGUAGE "RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY" AS USED IN THE RESOLUTION TO BE INTERPRETED AS SUPERSEDING PREVIOUS AUTHORITY TO ALLOW GRATUITY HOLIDAY PAY IN ADDITION TO PAY FOR ANY WORK PERFORMED ON SUCH DAYS?

QUESTION 3. IS A 40-HOUR WEEK HOURLY EMPLOYEE ENTITLED TO GRATUITY HOLIDAY PAY FOR A HOLIDAY FALLING ON SATURDAY (A DAY ON WHICH HE WOULD NOT HAVE BEEN REQUIRED TO PERFORM SERVICE IN ANY EVENT) WHERE HIS REGULAR TOUR OF DUTY WAS FROM MONDAY TO FRIDAY, INCLUSIVE?

QUESTION 4. IS A 40-HOUR WEEK HOURLY EMPLOYEE ENTITLED TO OVERTIME COMPENSATION UNDER THE FOLLOWING CIRCUMSTANCES? HIS REGULAR TOUR OF DUTY CONSISTED OF 8 HOURS A DAY FROM MONDAY TO FRIDAY. HE WAS PREVENTED FROM WORKING ON THURSDAY SOLELY BECAUSE IT WAS A HOLIDAY (AND RECEIVED PAY THEREFOR ACCORDINGLY) AND ON SATURDAY WAS CALLED UPON TO PERFORM 8 HOURS' SERVICE. IN OTHER WORDS, IS THE HOLIDAY TIME ALLOWED FOR THURSDAY SYNONYMOUS WITH WORK SO FAR AS OVERTIME ALLOWANCE IS CONCERNED?

QUESTION 5. MAY GRATUITY HOLIDAY PAY BE ALLOWED UNDER THE FOLLOWING CIRCUMSTANCES? IN ORDER TO FACILITATE PROGRESS OF RUSH WORK, THE USUAL SCHEDULE OF WORKING DAYS CONSTITUTING A 40-HOUR WEEK IS ADMINISTRATIVELY CHANGED SO AS TO PERMIT 40 HOURS ACTUAL SERVICE, REGARDLESS OF HOLIDAY TIME, AS FOR EXAMPLE: DURING A WEEK WHEN A HOLIDAY FALLS ON FRIDAY, A NORMAL WORK DAY, SATURDAY IS PLACED ON THE SCHEDULE AS A REGULAR WORK DAY, AND FRIDAY, THE HOLIDAY, IS SCHEDULED AS A NONWORK DAY.

QUESTION 6. IN CASE OF AN AFFIRMATIVE REPLY TO THE PRECEDING QUESTION (NO. 5) WOULD AN EMPLOYEE WHO WORKED IN THAT WEEK 40 HOURS AND WAS ALLOWED 8 HOURS HOLIDAY TIME BE ALLOWED OVERTIME COMPENSATION FOR THE 8 HOURS IN EXCESS OF 40?

QUESTION 7. ARE HOURLY EMPLOYEES ENTITLED TO ADDITIONAL HOLIDAY PAY WHERE THEY ARE REQUIRED TO PERFORM SERVICE ON A HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY?

QUESTION 8. HERETOFORE EMPLOYEES ABOVE THE GRADE OF LABORER WHO WORKED ON THE DAYS PRIOR AND SUBSEQUENT TO GRATUITY HOLIDAYS OR WHO WORKED MORE THAN HALF A DAY ON ONE SIDE AND WERE IN A PAY STATUS ON THE OTHER, WERE ALLOWED THEIR GRATUITY PAY FOR SUCH HOLIDAYS. WOULD THERE BE ANY OBJECTION TO THE GOVERNOR ADMINISTRATIVELY RULING THAT EMPLOYEES MEETING THESE REQUIREMENTS ARE TO BE CONSIDERED AS BEING "PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY?

QUESTION 9. IN CASE OF A NEGATIVE REPLY TO THE PRECEDING QUESTION (NO. 8) MAY AN EMPLOYEE BE CONSIDERED AS BEING "PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY" UNDER THE FOLLOWING CIRCUMSTANCES?

(A) HE IS ABSENT WITH PERMISSION ALL DAY ON THE WORK DAY PRECEDING THE HOLIDAY, BUT WORKS ALL THE MORNING OF THE DAY FOLLOWING THE HOLIDAY.

(B) HE IS ABSENT WITH PERMISSION ALL DAY ON THE WORK DAY PRECEDING THE HOLIDAY BUT WORKS THE ENTIRE DAY FOLLOWING THE HOLIDAY.

(C) ON THE WORK DAY PRECEDING THE HOLIDAY HE WORKS IN THE MORNING, BUT IS EXCUSED WITH PERMISSION FOR THE AFTERNOON AND IS LIKEWISE EXCUSED WITH PERMISSION ON THE DAY FOLLOWING THE HOLIDAY.

(D) ON THE WORK DAY PRECEDING THE HOLIDAY HE WORKS THE FIRST 5 HOURS AND IS ABSENT ON ACCOUNT OF ILLNESS THE LAST 3 HOURS, AND IS ABSENT WITH PERMISSION ON THE DAY FOLLOWING THE HOLIDAY.

(E) ON THE WORK DAY PRECEDING THE HOLIDAY HE IS ABSENT IN THE MORNING BUT WORKS IN THE AFTERNOON AND IS ABSENT WITH PERMISSION ON THE DAY FOLLOWING THE HOLIDAY.

(F) ON THE WORK DAY PRECEDING THE HOLIDAY HE WORKS ALL DAY BUT IS ABSENT WITHOUT PERMISSION THE DAY FOLLOWING THE HOLIDAY.

IT IS RECOMMENDED THAT YOU DECISION IN THE MATTER BE RENDERED AT AN EARLY DATE, IN ORDER THAT TIMELY ADMINISTRATIVE ACTION MAY BE TAKEN.

BY DIRECTION OF THE GOVERNOR OF THE PANAMA CANAL.

WHILE THE FACT THAT PER DIEM, PER HOUR, AND PIECE-WORK EMPLOYEES ARE APPOINTED OR EMPLOYED WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND REGULATIONS AND ARE NOT ENTITLED TO RETIREMENT, WOULD NOT NECESSARILY PRECLUDE THEM FROM BEING REGARDED AS REGULAR EMPLOYEES WITHIN THE PURVIEW OF PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, IT IS APPARENT FROM YOUR LETTER THAT "ALIEN EMPLOYEES OF THE PANAMA CANAL WHO HERETOFORE WERE NOT ENTITLED TO GRATUITY HOLIDAY AY" (QUOTING FROM QUESTION 1) HAVE BEEN REGARDED BY THE PANAMA CANAL NOT AS "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" (QUOTING FROM THE PUBLIC RESOLUTION), BUT RATHER AS WORKERS EMPLOYED FROM DAY TO DAY. THERE IS NOTHING IN THE PUBLIC RESOLUTION OR OTHERWISE REQUIRING A DIFFERENT CONCLUSION. SEE 5 COMP. GEN. 235; 10 ID. 322, 13 ID. 378. QUESTION 1 IS ANSWERED IN THE NEGATIVE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE AND QUESTION 3 IN THE NEGATIVE. SEE DECISION OF AUGUST 19, 1938, A-97193, TO THE SECRETARY OF WAR, IN WHICH IT WAS STATED:

HENCE, REGULAR PER DIEM, PER HOUR, AND PIECE-WORK EMPLOYEES ARE ENTITLED TO THEIR REGULAR PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED ONLY IF AND WHEN THEY "ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF" THE HOLIDAY. IF THEY ARE RELIEVED OR PREVENTED FROM WORKING ON THE HOLIDAY FOR ANY REASON OTHER THAN THE OCCURRENCE OF THE HOLIDAY, SUCH AS WHEN THE HOLIDAY OCCURS ON A NON-WORK DAY, OR WITHIN A PERIOD OF FURLOUGH OR LEAVE OF ABSENCE, NO PAY FOR THE HOLIDAY AS SUCH IS AUTHORIZED. IF SUCH EMPLOYEES ARE REQUIRED TO WORK ON A HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY, ONLY ONE DAY'S PAY IS AUTHORIZED--- PAYMENT OF GRATUITY HOLIDAY PAY IN ADDITION BEING NO LONGER AUTHORIZED. IF THE HOLIDAY OCCURS ON A DAY OUTSIDE THE REGULAR TOUR OF DUTY AT 40 HOURS PER WEEK AND WORK IS REQUIRED ON THE HOLIDAY, THE EMPLOYEE IS NOT ENTITLED TO TWO DAYS' PAY, ONE FOR WORKING AND ONE FOR THE HOLIDAY, BUT MAY BE ENTITLED TO OVERTIME PAY FOR THE DAY UNDER ADMINISTRATIVE REGULATIONS AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THEIR REGULAR PAY. (SEE THE 40 HOUR WEEK STATUTE, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522.)

QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE. SEE 14 COMP. GEN. 761.

QUESTION 5 IS ANSWERED IN THE NEGATIVE. WHILE AN ADMINISTRATIVE OFFICE SHOULD NOT ARBITRARILY ADJUST DAYS OF WORK FOR THE PURPOSE OF DEFEATING THE EMPLOYEE'S RIGHT TO PAY FOR A HOLIDAY, IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE 40-HOUR WEEKLY TOUR OF DUTY ON ANY OF THE 7 DAYS OF ANY WEEK (13 COMP. GEN. 291; ID. 307), AND IF IN THE EXERCISE OF THAT ADMINISTRATIVE DISCRETION, IN AN EMERGENCY, THE DAYS OF WORK IN ANY WEEK ARE ADJUSTED SO THAT A HOLIDAY FALLS ON A NONWORK DAY, THE 40-HOUR WEEKLY TOUR OF DUTY TO BE ON THE OTHER DAYS OF THAT WEEK, THE EMPLOYEE WOULD BE ENTITLED TO ONLY HIS REGULAR PAY FOR THE FIVE DAYS WORKED WITH NO PAY FOR THE HOLIDAY WHICH FELL ON HIS NON WORK DAY.

THE ANSWER TO QUESTION 5 MAKES IT UNNECESSARY TO ANSWER QUESTION 6.

QUESTION 7 IS ANSWERED IN THE NEGATIVE. SEE DECISION OF AUGUST 19, 1938, A-97163.

REFERRING TO QUESTIONS 8 AND 9, IT EVIDENTLY WAS THE INTENT OF THE CONGRESS THAT THE NEW HOLIDAY STATUTE FOR PER DIEM, PER HOUR, OR PIECE WORK EMPLOYEES, INCLUDING THE PHRASE "RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY," SHOULD BE UNIFORMLY APPLIED TO ALL "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS.' THE RIGHT TO PAY FOR HOLIDAYS UNDER THIS STATUTE SHOULD NOT BE CONFUSED WITH RIGHTS UNDER LEAVE STATUTES AND REGULATIONS. IF AN EMPLOYEE IS ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN OR AT EITHER END OF AN ABSENCE ON ANNUAL OR SICK LEAVE WITH PAY, IT MUST BE BECAUSE OF (AND ONLY IN ACCORDANCE WITH) THE LEAVE STATUTES AND REGULATIONS AND NOT BECAUSE OF THIS STATUTE. IF AN EMPLOYEE OF A CLASS TO WHICH THIS STATUTE APPLIES IS NOT ACTUALLY ON THE JOB AT THE CLOSE OF THE WORK DAY PRECEDING THE HOLIDAY, WHETHER WITH OR WITHOUT PERMISSION, IT IS NOT TO BE PRESUMED AS A MATTER OF COURSE THAT HE WAS RELIEVED OR PREVENTED FROM WORKING ON THE HOLIDAY SOLELY BECAUSE IT WAS A HOLIDAY; AND EVEN THOUGH HE WAS ON THE JOB AT THE CLOSE OF THE WORK DAY PRECEDING THE HOLIDAY, IT DOES NOT NECESSARILY FOLLOW THAT HE WOULD HAVE WORKED ON THE NEXT DAY IF IT HAD NOT BEEN A HOLIDAY IF HE IS NOT ON THE JOB AT THE BEGINNING OF THE WORK DAY FOLLOWING THE HOLIDAY. ONLY WHEN AN EMPLOYEE IS ACTUALLY ON THE JOB AT THE CLOSE OF THE WORK DAY BEFORE, AND AT THE BEGINNING OF THE WORK DAY AFTER THE HOLIDAY, MAY PAYMENT FOR THE HOLIDAY BE MADE UNDER THE STATUTE HERE INVOLVED ON THE PRESUMPTION THAT THE EMPLOYEE WAS RELIEVED OR PREVENTED FROM WORKING ON THE HOLIDAY SOLELY BECAUSE IT WAS A HOLIDAY. IN ALL OTHER CASES IN WHICH PAY FOR THE HOLIDAY IS CLAIMED UNDER THIS STATUTE THERE SHOULD BE A SHOWING OF THE FACTS AND CIRCUMSTANCES TENDING TO ESTABLISH THAT THE EMPLOYEE WOULD HAVE WORKED ON THE DAY INVOLVED BUT FOR THE SOLE FACT THAT IT WAS A HOLIDAY. QUESTIONS 8 AND 9 ARE ANSWERED ACCORDINGLY.