A-43618, AUGUST 9, 1932, 12 COMP. GEN. 204

A-43618, AUGUST 9, 1932, 12 COMP. GEN. 204

ECONOMY ACT - HOLIDAY PAY - NAVAL ESTABLISHMENT PER DIEM EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WORKING FOR SUBSTANTIALLY CONTINUOUS INDEFINITE PERIODS, AS DISTINGUISHED FROM THOSE EMPLOYED FROM DAY TO DAY OR FOR A DEFINITELY FIXED BRIEF PERIOD, WHETHER ON A 5-DAY OR 5 1/2-DAY WEEK, ARE ENTITLED TO PAY FOR STATUTORY HOLIDAYS OCCURRING DURING AUTHORIZED LEAVE OF ABSENCE WITHOUT PAY, BUT NOT DURING UNAUTHORIZED LEAVE OF ABSENCE WITHOUT PAY. THE COMPENSATION OF A PER ANNUM EMPLOYEE PLACED ON A 5-DAY WEEK REMAINS ON AN ANNUAL BASIS AT TEN-ELEVENTHS OF HIS FORMER RATE, AND THE USUAL RULES FOR CHARGING LEAVE OF ABSENCE WITHOUT PAY OR PER ANNUM EMPLOYEES, AS DISTINGUISHED FROM LEGISLATIVE FURLOUGH, UNDER THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT, HAVE NOT CHANGED. PER ANNUM EMPLOYEES ARE ENTITLED TO COMPENSATION FOR SUNDAYS AND HOLIDAYS DURING FURLOUGH TIME TAKEN IN PERIODS OF LESS THAN ONE CALENDAR MONTH, BUT AFTER THE ENTIRE 24 DAYS' WORKING TIME HAS BEEN EXHAUSTED, THE USUAL RULES FOR COMPUTING DEDUCTIONS FOR PERIODS OF ABSENCE WITHOUT PAY ARE FOR APPLICATION. THE USUAL RULES FOR COMPUTING COMPENSATION FOR SUNDAYS AND HOLIDAYS AND FOR DEDUCTIONS DURING ABSENCES WITHOUT PAY OF PER DIEM AND PER ANNUM EMPLOYEES EMPLOYED AT A RATE OF $1,000 PER ANNUM OR LESS REMAIN IN FORCE DURING THE FISCAL YEAR 1933 AND ARE NOT AFFECTED BY THE ECONOMY ACT, EXCEPT, OF COURSE, SUCH EMPLOYEES ARE NOT ENTITLED TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 9, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 22, 1932, REQUESTING DECISION OF A NUMBER OF QUESTIONS INVOLVING THE APPLICATION OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 399, WHICH WILL BE STATED AND ANSWERED IN THE ORDER APPEARING IN YOUR LETTER.

IT IS ASSUMED FOR THE PURPOSE OF THIS DECISION THAT THE PER DIEM EMPLOYEES REFERRED TO ARE THOSE EMPLOYED FOR SUBSTANTIALLY CONTINUOUS INDEFINITE PERIODS AS DISTINGUISHED FROM THOSE EMPLOYED FROM DAY TO DAY OR FOR A DEFINITELY FIXED BRIEF PERIOD, AND THAT THEY ARE, IN FACT, PER DIEM EMPLOYEES WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF JANUARY 6, 1885, 23 STAT. 516, AND THE ACT OF FEBRUARY 23, 1887, 24 STAT. 644. SEE 5 COMP. GEN. 312.

(1) IS A PER DIEM EMPLOYEE WORKING ON A 5-DAY-WEEK BASIS ENTITLED TO HOLIDAY PAY IF HE IS ABSENT WITHOUT PAY ON THE DAYS IMMEDIATELY PRECEDING AND FOLLOWING A HOLIDAY? FOR EXAMPLE, AN EMPLOYEE IS ABSENT FROM DUTY IN A NON-PAY STATUS ON WEDNESDAY BEFORE AND FRIDAY AFTER THURSDAY, THANKSGIVING DAY.

SUBJECT TO THE ASSUMPTION HEREINBEFORE STATED AND WITH RESPECT TO THE HOLIDAYS MENTIONED IN THE ACTS CITED IN THE ACT OF JUNE 28, 1894, 28 STAT. 96, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE DECISION OF JULY 26, 1932, TO THE SECRETARY OF WAR, A-43421, 12 COMP. GEN. 117.

(2) IS A PER DIEM EMPLOYEE WORKING ON A FIVE AND ONE-HALF DAY WEEK BASIS ENTITLED TO HOLIDAY PAY UNDER THE SAME CONDITIONS CITED IN THE PRECEDING QUESTION WHEN (A) HE IS ABSENT WITHOUT PAY AND HAS NO UNUSED FURLOUGH TIME AND (B) WHEN THE TWO DAYS' ABSENCE CAN BE CHARGED TO ACCUMULATED UNUSED FURLOUGH TIME?

IN DECISION OF FEBRUARY 16, 1916, 22 COMP. DEC. 404, WHEREIN WAS CONSIDERED THE PAY STATUS ON HOLIDAYS OCCURRING DURING PERIODS OF AUTHORIZED LEAVE OF ABSENCE WITHOUT PAY OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, IT WAS STATED:

THE REASON ASSIGNED BY THE AUDITOR FOR THE DISALLOWANCE OF THESE ITEMS IS AS FOLLOWS:

"WHERE AN EMPLOYEE IS ABSENT WITHOUT PAY ON BOTH SIDES OF A HOLIDAY HE IS NOT ENTITLED TO PAY FOR THE HOLIDAY, HIS NONPAY STATUS CONTINUING UNTIL RESUMPTION OF WORK BY HIM.'

THIS MAY BE A CORRECT STATEMENT OF THE RULE AS APPLIED TO PER ANNUM EMPLOYEES OF THE EXECUTIVE DEPARTMENTS, WHOSE RIGHT TO PAY FOR HOLIDAYS DEPENDS UPON THE PRESUMPTION THAT THEY WOULD HAVE RENDERED SERVICE ON SAID DAYS HAD NOT THE DEPARTMENTS BEEN CLOSED, BUT THE EMPLOYEES UNDER CONSIDERATION ARE UPON AN ENTIRELY DIFFERENT FOOTING. THEIR RIGHT TO PAY FOR THESE HOLIDAYS DEPENDS NOT UPON ANY PRESUMPTION AS TO DUTY, BUT UPON EXPRESS PROVISIONS OF LAW TO THE EFFECT THAT EMPLOYEES SUCH AS THESE ARE ENTITLED TO PAY FOR THE HOLIDAYS WITHOUT RENDERING SERVICE THEREON. (SEE ACT JANUARY 6, 1885, 23 STAT. 516; ACT FEBRUARY 23, 1887, 24 STAT. 644; ACT JANUARY 12, 1895, 28 STAT. 607.)

AS WAS STATED IN THE DECISION OF THIS OFFICE OF FEBRUARY 15, 1915 (21 COMP. DEC. 571), THESE LAWS ARE SELF-EXECUTING, AND IF THE EMPLOYEES TO WHICH THEY REFER ARE REQUIRED TO PERFORM SERVICE ON THE HOLIDAYS MENTIONED THEY ARE ENTITLED TO DOUBLE COMPENSATION (8 COMP. DEC. 322).

THE ACT OF AUGUST 1, 1914 (38 STAT. 671), APPROPRIATED $185,000 "TO ENABLE THE PUBLIC PRINTER TO COMPLY WITH THE PROVISIONS OF THE LAW GRANTING HOLIDAYS * * * WITH PAY TO THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE.'

IF THE PERSONS TO WHOM THE PAYMENTS WERE MADE WERE IN FACT PER DIEM EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, NOT IN SUSPENSION OR ABSENT WITHOUT AUTHORITY, WHEN THE HOLIDAYS PAID FOR OCCURRED, I SEE NO GOOD REASON WHY THEY ARE NOT ENTITLED TO PAY FOR SUCH HOLIDAYS REGARDLESS OF WHETHER THEY WORKED THE DAY BEFORE OR THE DAY AFTER SAID HOLIDAYS.

THE STATUTES GRANTING TO EMPLOYEES PAY FOR HOLIDAYS DO NOT CONTEMPLATE THAT A PERSON SHALL BE CARRIED FOR AN INDEFINITE PERIOD AS AN EMPLOYEE, AND YET RENDER NO SERVICE, OR PRACTICALLY NO SERVICE, AND RECEIVE NO PAY FOR OTHER DAYS. EMPLOYEES SHOULD NOT BE PAID FOR HOLIDAYS, EXCEPT FOR SUCH AS OCCUR WITHIN THE PERIOD OF 60 DAYS COVERED BY THE RULES. IF THEY BE GRANTED ADDITIONAL PERIODS OF LEAVE WITHOUT PAY, IN THE DISCRETION OF THE PUBLIC PRINTER, UNDER THE RULES AND THE STATUTES THEIR STATUS AS EMPLOYEES FOR THE PURPOSE OF HOLIDAY PAY CEASES WITH THE EXPIRATION OF THE 60-DAY PERIOD PROVIDED FOR BY THE RULES, AND CAN NOT LAWFULLY BE REESTABLISHED EXCEPT BY A BONA FIDE RETURN TO DUTY FOR REASONS OF OFFICIAL BUSINESS NECESSITY.

APPLYING THESE PRINCIPLES IN THE INSTANT CASE, 2 (A) IS ANSWERED IN THE AFFIRMATIVE AS TO THE EMPLOYEES ON AUTHORIZED LEAVE OF ABSENCE WITHOUT PAY IMMEDIATELY PRIOR AND SUBSEQUENT TO A HOLIDAY AND IN THE NEGATIVE AS TO EMPLOYEES ABSENT WITHOUT PROPER AUTHORITY. THE PRINCIPLE STATED IN THE LAST PARAGRAPH OF DECISION OF FEBRUARY 10, 1930, 9 COMP. GEN. 350, 351, HAS REGARD TO EMPLOYEES OF THE LATTER CLASS. QUESTION (2) (B) IS ANSWERED IN THE AFFIRMATIVE. IT MAY BE STATED GENERALLY THAT IN SO FAR AS THE RIGHT OF PER DIEM EMPLOYEES TO PAY FOR THESE STATUTORY HOLIDAYS IS CONCERNED THERE IS NO DIFFERENCE BETWEEN THOSE WORKING ON A 5-DAY WEEK BASIS AND THOSE WORKING ON A 5 1/2-DAY WEEK BASIS.

(3) IS A PER ANNUM EMPLOYEE WORKING ON A FIVE-DAY WEEK BASIS ENTITLED TO PAY FOR SATURDAYS, SUNDAYS, AND HOLIDAYS OCCURRING WITHIN A PERIOD OF ABSENCE FROM DUTY WITHOUT PAY? FOR EXAMPLE, AN EMPLOYEE IS ABSENT FROM DUTY FROM FRIDAY TO MONDAY, BOTH INCLUSIVE, AND IN SUCH A CASE HOW MANY DAYS' PAY SHOULD BE DEDUCTED?

ALTHOUGH A PER ANNUM EMPLOYEE MAY BE PLACED ON A 5-DAY WEEK HIS COMPENSATION REMAINS ON AN ANNUAL BASIS AT TEN-ELEVENTHS OF HIS FORMER ANNUAL RATE. THE USUAL RULES FOR CHARGING LEAVE OF ABSENCE WITHOUT PAY OF PER ANNUM EMPLOYEES, AS DISTINGUISHED FROM LEGISLATIVE FURLOUGH UNDER THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT, HAVE NOT BEEN CHANGED. DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43126, 12 COMP. GEN. 11, IN ANSWER TO QUESTION 4, IT WAS STATED:

THERE WOULD BE INVOLVED SIMPLY THE ESTABLISHING OF THE 5-DAY WEEK FOR PER ANNUM OFFICERS AND EMPLOYEES, AND THEIR PER ANNUM COMPENSATION WOULD THEN BE AT TEN-ELEVENTHS OF THEIR FORMER REGULAR PER ANNUM RATE, AND FOR EACH DAY'S ABSENCE WITHOUT PAY (OTHER THAN THE ONE-HALF DAY FURLOUGH EACH WEEK) THERE SHOULD BE DEDUCTED ONE THREE-HUNDRED-AND SIXTIETH OF THE PER ANNUM COMPENSATION AS THUS COMPUTED IN ACCORDANCE WITH THE RULES AND REGULATIONS APPLICABLE TO DEDUCTIONS FOR LEAVE WITHOUT PAY.

THIS QUESTION IS ANSWERED IN THE NEGATIVE, AND IN THE EXAMPLE GIVEN THERE SHOULD BE DEDUCTED FOUR THREE-HUNDRED-AND-SIXTIETHS OF TEN ELEVENTHS OF THE EMPLOYEE'S FORMER ANNUAL SALARY.

(4) IS A PER ANNUM EMPLOYEE WORKING ON A FIVE AND ONE-HALF DAY WEEK BASIS ENTITLED TO PAY FOR SATURDAY AFTERNOON, SUNDAYS AND HOLIDAYS OCCURRING WITHIN A PERIOD OF ABSENCE FROM DUTY WHEN (A) HE HAS NO UNUSED FURLOUGH TIME (I.E., HE HAS ALREADY BEEN ABSENT FROM DUTY ON WORKING DAYS AT THE RATE OF AT LEAST ONE DAY FOR EACH SEMIMONTHLY PERIOD) AND (B) WHEN THE WORKING DAYS (FRIDAY, SATURDAY MORNING AND MONDAY IN THE EXAMPLE CITED IN THE PRECEDING QUESTION) CAN BE CHARGED TO ACCUMULATED UNUSED FURLOUGH TIME?

THE 24 WORKING DAYS ONLY ARE TO BE CONSIDERED IN COMPUTING FURLOUGH TIME WHEN TAKEN IN PERIODS OF LESS THAN ONE CALENDAR MONTH. HENCE, COMPUTATION AND THE EMPLOYEE WOULD BE ENTITLED TO COMPENSATION THEREFOR WHEN OCCURRING IN PERIODS OF FURLOUGH TIME. AFTER THE ENTIRE 24 DAYS' FURLOUGH TIME HAS BEEN EXHAUSTED, HOWEVER, THE USUAL RULES FOR COMPUTING DEDUCTIONS FOR PERIODS OF ABSENCE WITHOUT PAY ARE FOR APPLICATION. THEREFORE, 4 (A) IS ANSWERED IN THE NEGATIVE AND 4 (B) IN THE AFFIRMATIVE.

(5) THE PRECEDING FOUR QUESTIONS ARE BASED ON THE ASSUMPTION THAT THE EMPLOYEES CONCERNED ARE COMPENSATED AT A RATE IN EXCESS OF $1,000 PER ANNUM. WOULD THE SAME RULES BE APPLIED TO EMPLOYEES RECEIVING $1,000 PER ANNUM OR LESS, IT BEING NOTED THAT SUCH EMPLOYEES CAN NOT ACCUMULATE FURLOUGH TIME OFF AND THEIR PAY CAN NOT BE REDUCED?

THE USUAL RULES FOR COMPUTING COMPENSATION FOR SUNDAYS AND HOLIDAYS AND FOR DEDUCTIONS DURING ABSENCES WITHOUT PAY OF PER DIEM AND PER ANNUM EMPLOYEES RECEIVING COMPENSATION AT A RATE OF $1,000 PER ANNUM OR LESS REMAIN IN FORCE DURING THE FISCAL YEAR 1933, AND ARE NOT AFFECTED BY THE ECONOMY ACT, EXCEPT, OF COURSE, THAT SUCH EMPLOYEES ARE NOT ENTITLED TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933.

IN VIEW OF THE ANSWERS TO THE PRECEDING QUESTIONS, IT WOULD APPEAR UNNECESSARY TO ANSWER YOUR SIXTH QUESTION, STATED AS FOLLOWS:

(6) IF IT IS DECIDED THAT IN THE CASE OF EMPLOYEES WORKING ON A FIVE AND ONE-HALF DAY WEEK PAYMENT SHALL NOT BE MADE FOR HOLIDAYS (IN THE CASE OF PER DIEM EMPLOYEES) AND SATURDAYS, SUNDAYS AND HOLIDAYS (IN THE CASE OF PER ANNUM EMPLOYEES) OCCURRING WITHIN A PERIOD OF ABSENCE FROM DUTY, SHALL SUCH DAYS BE TREATED AS FURLOUGH TIME AND CHECK AGE MADE AT THE RATE OF ONE ONE ONE-FOURTH DAYS' PAY FOR EACH SUCH DAY'S ABSENCE, PROVIDED THAT THE TOTAL ACCUMULATED CHECK AGE WILL NOT EXCEED THIRTY DAYS?