A-18421, MAY 18, 1927, 6 COMP. GEN. 746

A-18421: May 18, 1927

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IS NOT REQUIRED TO COMPLY WITH THE LAWS OF CERTAIN FOREIGN GOVERNMENTS REQUIRING EMPLOYERS TO PAY PREMIUMS ON OLD AGE AND HEALTH INSURANCE FOR EMPLOYEES. CONSEQUENTLY THE APPROPRIATIONS UNDER THE DEPARTMENT OF STATE ARE NOT AVAILABLE FOR THE PAYMENT OF SUCH PREMIUMS. WHEREIN WAS DISALLOWED CREDIT FOR PAYMENTS TOTALING $27.35 MADE FOR PREMIUMS ON HEALTH INSURANCE FOR BRITISH EMPLOYEES OF THE CONSULATE AT SOUTHAMPTON. THE DISALLOWANCES WERE MADE FOR THE REASON THAT THE APPROPRIATIONS UNDER THE DEPARTMENT OF STATE WERE NOT CONSIDERED AVAILABLE FOR EXPENDITURES OF SUCH A NATURE. YOU WERE ADVISED AS FOLLOWS: IT MAY BE SAID THAT THE OLD-AGE INSURANCE OF EMPLOYEES REQUIRED BY A FOREIGN GOVERNMENT IS NECESSARILY LOCAL AND NOT SUCH A REQUIREMENT AS WOULD ORDINARILY SUSPEND THE GENERAL IMMUNITY ATTACHING TO OTHER GOVERNMENTS HAVING REPRESENTATIVES IN SUCH FOREIGN COUNTRY.

A-18421, MAY 18, 1927, 6 COMP. GEN. 746

INSURANCE - PAYMENT OF PREMIUMS ON OLD AGE AND HEALTH INSURANCE OF FOREIGN SERVICE EMPLOYEES THE UNITED STATES IN THE CAPACITY OF EMPLOYER OF SUBJECTS OF FOREIGN COUNTRIES IN ITS CONSULATES, EMBASSIES, ETC., ABROAD, IS NOT REQUIRED TO COMPLY WITH THE LAWS OF CERTAIN FOREIGN GOVERNMENTS REQUIRING EMPLOYERS TO PAY PREMIUMS ON OLD AGE AND HEALTH INSURANCE FOR EMPLOYEES, AND CONSEQUENTLY THE APPROPRIATIONS UNDER THE DEPARTMENT OF STATE ARE NOT AVAILABLE FOR THE PAYMENT OF SUCH PREMIUMS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 18, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 25, 1927, REQUESTING REVIEW OF SETTLEMENTS K-1819-S, DATED JANUARY 12, 1927, AND K-6754-S, DATED APRIL 18, 1927, COVERING ACCOUNTS OF JOHN M. SAVAGE, FOREIGN SERVICE OFFICER, SOUTHAMPTON, ENGLAND, WHEREIN WAS DISALLOWED CREDIT FOR PAYMENTS TOTALING $27.35 MADE FOR PREMIUMS ON HEALTH INSURANCE FOR BRITISH EMPLOYEES OF THE CONSULATE AT SOUTHAMPTON. THE DISALLOWANCES WERE MADE FOR THE REASON THAT THE APPROPRIATIONS UNDER THE DEPARTMENT OF STATE WERE NOT CONSIDERED AVAILABLE FOR EXPENDITURES OF SUCH A NATURE.

IN DECISION OF DECEMBER 3, 1926, A-16355, INVOLVING OLD AGE AND HEALTH INSURANCE OF CITIZENS OF CZECHOSLOVAKIA EMPLOYED BY FOREIGN SERVICE OFFICERS IN THAT COUNTRY, YOU WERE ADVISED AS FOLLOWS:

IT MAY BE SAID THAT THE OLD-AGE INSURANCE OF EMPLOYEES REQUIRED BY A FOREIGN GOVERNMENT IS NECESSARILY LOCAL AND NOT SUCH A REQUIREMENT AS WOULD ORDINARILY SUSPEND THE GENERAL IMMUNITY ATTACHING TO OTHER GOVERNMENTS HAVING REPRESENTATIVES IN SUCH FOREIGN COUNTRY. IT WOULD PROBABLY BE A MATTER WITH WHICH THE EMPLOYEE WOULD HAVE TO COMPLY, BUT APPARENTLY THERE WOULD BE NO MEANS OF COMPELLING A FOREIGN GOVERNMENT TO MAKE SUCH PAYMENTS. BUT BE THIS AS IT MAY, THE APPROPRIATIONS UNDER YOUR CONTROL ARE NOT AVAILABLE FOR SUCH AN EXPENDITURE.

NOTHING HAS BEEN SUBMITTED TO JUSTIFY OR REQUIRE ANY ALTERATION OF THIS VIEW. IN FACT, THERE ARE OTHER CONSIDERATIONS WHICH IMPEL ITS AFFIRMATION.

IT APPEARS THAT THE ENGLISH LAW REQUIRES ALL EMPLOYERS OF LABOR TO CARRY NATIONAL HEALTH INSURANCE FOR THEIR EMPLOYEES. IT IS UNDERSTOOD THE LAW REQUIRES THAT THE PREMIUMS BE PAID ONE-HALF BY THE EMPLOYERS AND ONE-HALF BY THE EMPLOYEES. THE PURPOSE OF THE LAW IS APPARENTLY SOMEWHAT SIMILAR TO THAT OF THE EMPLOYEES' COMPENSATION ACTS OF THE UNITED STATES AND OF THE SEVERAL STATES THEREOF. THE ONLY EMPLOYEES INVOLVED HEREIN ARE THOSE SUBJECTS OF ENGLAND WHO MAY BE EMPLOYED BY FOREIGN SERVICE OFFICERS WITHOUT THE NECESSITY OF SHOWING UNITED STATES CITIZENSHIP, SUCH AS LABORERS, JANITORS, MESSENGERS, ELEVATOR CONDUCTORS, ETC. THESE EMPLOYEES ARE CIVIL EMPLOYEES OF THE UNITED STATES AND ARE ENTITLED TO THE BENEFITS OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, AS AMENDED, NOTWITHSTANDING THEIR ENGLISH CITIZENSHIP. SEE SECTION 40 OF THE ACT, 39 STAT. 750. THE EMPLOYEES' COMPENSATION COMMISSION HAS ADVISED THAT CLAIMS HAVE BEEN PAID UNDER THE ACT TO SUCH EMPLOYEES. WHILE THESE FOREIGN EMPLOYEES ARE NOT ENTITLED TO CLAIM BENEFITS OF RETIREMENT OR OLD- AGE PENSIONS UNDER EITHER THE CIVIL RETIREMENT ACT OR THE FOREIGN SERVICE RETIREMENT ACT OF THIS COUNTRY, IT IS NOT THEIR STATUS AS FOREIGN SUBJECTS THAT EXCLUDES THEM FROM THE BENEFITS OF THOSE ACTS, BUT THEIR STATUS AS EMPLOYEES IN THE FOREIGN SERVICE BELOW THE RANK OF ANY FOREIGN SERVICE OFFICER, WHICH CLASS OF EMPLOYEES WHETHER CITIZENS OF THIS COUNTRY OR OF A FOREIGN COUNTRY HAVE NOT BEEN BROUGHT WITHIN THE TERMS OF EITHER RETIREMENT ACT.

THUS, AS THE UNITED STATES HAS GIVEN CONSIDERATION TO, AND PROVIDED FOR, WHAT HAS BEEN DEEMED TO BE THE PROPER PROTECTION TO ITS EMPLOYEES AGAINST INJURIES AND OLD AGE, THERE COULD BE NO REASON OR JUSTIFICATION FOR THIS COUNTRY, IN THE CAPACITY OF EMPLOYER, TO BE REQUIRED TO COMPLY WITH SIMILAR LAWS OF FOREIGN COUNTRIES.

GIVING CONSIDERATION TO INTERNATIONAL RELATIONSHIP, IT IS NOT UNDERSTOOD THAT FOREIGN EMBASSIES, LEGATIONS, AND CONSULATES IN THE UNITED STATES ARE REQUIRED TO COMPLY WITH ANY OF THE LAWS OF THIS COUNTRY RELATIVE TO THE HOURS OF DUTY, MINIMUM WAGES, OR OTHER CONDITIONS OF EMPLOYMENT. IF NOT SO REQUIRED, SUCH IMMUNITY SHOULD BE RECIPROCAL.

YOU REFER SPECIFICALLY TO THE TERMS OF THE ANNUAL APPROPRIATION ACTS FOR "CONTINGENT EXPENSES, UNITED STATES CONSULATES," AUTHORIZING PAYMENT OF MISCELLANEOUS EXPENSES CONSIDERED NECESSARY BY THE PRESIDENT, AND TO EXECUTIVE ORDER NO. 4401, DATED MARCH 24, 1926, ISSUED PURSUANT THERETO, WHEREIN IS INCLUDED AN ITEM "INSURANCE" WHERE REQUIRED BY LAWS OF THE FOREIGN COUNTRY.' THERE IS NOTHING TO INDICATE THE KIND OF INSURANCE INTENDED, AND IN VIEW OF THE CONSIDERATIONS ABOVE STATED, IT IS SUFFICIENTLY DOUBTFUL TO JUSTIFY THE CONCLUSION THAT THE PRESIDENT HAD NO INTENTION OF IMPOSING ON THIS GOVERNMENT A POSSIBLE DOUBLE LIABILITY FOR THE INJURY OF EMPLOYEES OF THE UNITED STATES SIMPLY BECAUSE THEY ARE FOREIGN SUBJECTS. AT LEAST, THIS OFFICE DOES NOT FEEL JUSTIFIED IN AUTHORIZING CONTINUANCE OF SUCH PAYMENTS UNLESS AND UNTIL THE SAME SHALL HAVE BEEN SPECIFICALLY APPROVED BY LEGISLATIVE ENACTMENT.

IN VIEW OF THE LONG-EXISTING PRACTICE, CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF ALL FOREIGN SERVICE OFFICERS, INCLUDING THE ACCOUNTS CONSIDERED IN THE ABOVE-MENTIONED SETTLEMENTS, FOR PAYMENTS OF PREMIUMS ON OLD AGE AND HEALTH INSURANCE HERETOFORE MADE, BUT CREDIT WILL BE WITHHELD FOR SUCH PAYMENTS HEREAFTER MADE.