A-11366, OCTOBER 31, 1925, 5 COMP. GEN. 312

A-11366: Oct 31, 1925

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ARE THOSE WHO ARE EMPLOYED FOR SUBSTANTIALLY CONTINUOUS INDEFINITE PERIODS AND PAID ON A PER DIEM BASIS FOR THE DAYS ACTUALLY WORKING. THAT IS. INCLUDING SUNDAYS AND HOLIDAYS ON WHICH DAYS NO WORK IS PERFORMED. ARE NOT PER DIEM EMPLOYEES. ARE NOT ENTITLED TO DOUBLE PAY WHEN REQUIRED TO WORK ON HOLIDAYS. REQUESTING DECISION WHETHER CERTAIN EMPLOYEES OF THE RECLAMATION SERVICE ARE ENTITLED TO DOUBLE PAY FOR WORK PERFORMED ON MAY 30. WITH THE REGULAR PAY ROLL FOR THAT MONTH SHOWS THAT THE EMPLOYEES ON THE SUPPLEMENTAL PAY ROLL WORKED PRACTICALLY ALL OF THE REGULAR WORKING DAYS IN THE MONTH AND WERE PAID ON A PER DIEM BASIS FOR THE DAYS THEY ACTUALLY WORKED. THE SUPPLEMENTAL ROLL CONTAINS A CERTIFICATE BY THE SUPERINTENDENT OF THE PROJECT THAT THE PER DIEM EMPLOYEES SHOWN THEREON ARE PERMANENT EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE SPECIFIED ACTS PROVIDING FOR HOLIDAY PAY.

A-11366, OCTOBER 31, 1925, 5 COMP. GEN. 312

COMPENSATION, HOLIDAYS - PER DIEM EMPLOYEES EMPLOYEES OF THE GOVERNMENT WHO COME WITHIN THE MEANING OF THE STATUTES GRANTING PAY FOR CERTAIN HOLIDAYS TO PER DIEM EMPLOYEES WHEN NOT WORKING, AND ENTITLING THEM TO DOUBLE PAY WHEN WORKING ON THOSE STATUTORY HOLIDAYS, ARE THOSE WHO ARE EMPLOYED FOR SUBSTANTIALLY CONTINUOUS INDEFINITE PERIODS AND PAID ON A PER DIEM BASIS FOR THE DAYS ACTUALLY WORKING, AS DISTINGUISHED FROM THOSE ENGAGED FROM DAY TO DAY OR FOR A DEFINITELY FIXED BRIEF PERIOD. EMPLOYEES OF THE GOVERNMENT WHOSE CONTRACT OF EMPLOYMENT ENTITLES THEM TO PAY FOR STRAIGHT TIME; THAT IS, INCLUDING SUNDAYS AND HOLIDAYS ON WHICH DAYS NO WORK IS PERFORMED, ARE NOT PER DIEM EMPLOYEES, NOTWITHSTANDING THEIR COMPENSATION MAY BE STATED AT A PER DIEM RATE, AND ARE NOT ENTITLED TO DOUBLE PAY WHEN REQUIRED TO WORK ON HOLIDAYS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, OCTOBER 31, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 29, 1925, REQUESTING DECISION WHETHER CERTAIN EMPLOYEES OF THE RECLAMATION SERVICE ARE ENTITLED TO DOUBLE PAY FOR WORK PERFORMED ON MAY 30, 1925, MEMORIAL DAY; ALSO WHETHER CIRCULAR ISSUED BY THE RECLAMATION SERVICE, MAY 15, 1925, COPY OF WHICH YOU INCLOSED, MEETS THE VIEWS OF THIS OFFICE ON THE QUESTION OF HOLIDAY PAY FOR PER DIEM WORKERS.

A COMPARISON OF THE SUPPLEMENTAL PAY ROLL FORWARDED BY YOU FOR THE ONE DAY'S EXTRA PAY TO THE EMPLOYEES WORKING ON MAY 30, 1925, WITH THE REGULAR PAY ROLL FOR THAT MONTH SHOWS THAT THE EMPLOYEES ON THE SUPPLEMENTAL PAY ROLL WORKED PRACTICALLY ALL OF THE REGULAR WORKING DAYS IN THE MONTH AND WERE PAID ON A PER DIEM BASIS FOR THE DAYS THEY ACTUALLY WORKED. THE SUPPLEMENTAL ROLL CONTAINS A CERTIFICATE BY THE SUPERINTENDENT OF THE PROJECT THAT THE PER DIEM EMPLOYEES SHOWN THEREON ARE PERMANENT EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE SPECIFIED ACTS PROVIDING FOR HOLIDAY PAY. THIS CERTIFICATE, SUPPORTED BY THE REGULAR ROLL AS INDICATED ABOVE, BRINGS THE EMPLOYEES WITHIN THE DEFINITION OF PER DIEM EMPLOYEES GIVEN IN MY DECISION IN 3 COMP. GEN. 411, AND PAYMENT OF THE SUPPLEMENTAL ROLL, HEREWITH RETURNED, IS ACCORDINGLY AUTHORIZED.

THERE APPEARS TO BE SOME CONFUSION AS TO THE CORRECT DEFINITION OF PER DIEM EMPLOYEES WITHIN THE MEANING OF THE ACTS OF JANUARY 6, 1885, 23 STAT. 516; FEBRUARY 23, 1887, 24 STAT. 644; AND JUNE 28, 1894, 28 STAT. 96, PROVIDING FOR HOLIDAY PAY TO PER DIEM EMPLOYEES. IT WAS CORRECTLY STATED IN 3 COMP. GEN. 411 THAT SAID ACTS REFERRED TO EMPLOYEES PAID ON A PER DIEM BASIS EMPLOYED PERMANENTLY AS DISTINGUISHED FROM EMPLOYMENT FROM DAY TO DAY OR FOR BRIEF DEFINITE PERIODS. THE REQUIREMENT THAT THEY BE "EMPLOYED PERMANENTLY" DOES NOT MEAN THAT THEY MUST BE EMPLOYED UNDER SUCH A CONTRACT OR AGREEMENT THAT THEY WOULD BE ENTITLED TO PAY WITHOUT WORKING FOR ALL SUNDAYS OR HOLIDAYS IRRESPECTIVE OF THE ACTS ABOVE CITED, BUT ONLY THAT THEIR EMPLOYMENT MUST BE SUBSTANTIALLY CONTINUOUS FOR AN INDEFINITE PERIOD, PAYMENT BEING MADE ON A PER DIEM BASIS FOR THE DAYS ACTUALLY WORKING. IF ENTITLED TO PAYMENT FOR ALL SUNDAYS AND HOLIDAYS WHETHER WORKING OR NOT, THEY WOULD BE IN FACT ANNUAL EMPLOYEES, NOTWITHSTANDING THEIR SALARY MIGHT BE STATED ON A PER DIEM BASIS, AND THEY WOULD NOT BE ENTITLED TO DOUBLE PAY WHEN REQUIRED TO WORK ON HOLIDAYS.

THE CIRCULAR OF THE RECLAMATION SERVICE DATED MAY 15, 1925, WITH REFERENCE TO HOLIDAY PAY FOR PER DIEM EMPLOYEES, APPEARS TO INTERPRET CORRECTLY THE STATUTES AND DECISIONS OF THIS OFFICE ON THAT SUBJECT.

ANY PENDING SUSPENSIONS OR DISALLOWANCES IN THE ACCOUNTS OF DISBURSING OFFICERS OF THE RECLAMATION SERVICE INVOLVING HOLIDAY PAY FOR PER DIEM EMPLOYEES WILL BE ADJUSTED IN THE LIGHT OF THE FOREGOING.