A-46684, JANUARY 24, 1933, 12 COMP. GEN. 503

A-46684: Jan 24, 1933

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THEY MAY BE ENGAGED WITHOUT PRESIDENTIAL APPROVAL AND UPON THEIR SEPARATION FROM THE SERVICE NO IMPOUNDING OF THE SALARY IS REQUIRED. THE EMPLOYMENT OF LABORERS AT HOURLY RATES FOR INDEFINITE PERIODS IS NOT CONSIDERED TEMPORARY AND IS SUBJECT TO THE RESTRICTIONS OF SECTION 203.'. RECONSIDERATION OF THE LATTER RULING IS REQUESTED. " AND IT IS BELIEVED THAT THESE EMPLOYEES ARE TEMPORARY. IT WAS HELD THAT: "EVEN THOUGH CERTAIN OF THE EMPLOYEES. MAY HAVE STEADY EMPLOYMENT FOR THE NUMBER OF HOURS FIXED FOR REGULAR FULL-TIME EMPLOYEES. THEY ARE NOT ENTITLED UNDER THEIR EXISTING CONTRACTS OF EMPLOYMENT TO BE PAID FOR SATURDAY AFTERNOONS ON WHICH NO WORK IS PERFORMED.'. IT APPEARS THAT THIS RULING IS BASED ON THE FACT THAT THE EMPLOYEES MUST BE CONSIDERED AS TEMPORARY REGARDLESS OF THE DURATION OR STEADINESS OF EMPLOYMENT.

A-46684, JANUARY 24, 1933, 12 COMP. GEN. 503

ECONOMY ACT - TEMPORARY EMPLOYEES EMPLOYEES ENGAGED UNDER CONTRACT AT PER HOUR RATES "WHEN ACTUALLY EMPLOYED" GENERALLY MUST BE CONSIDERED TEMPORARY AND EXEMPTED FROM THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT. THEY MAY BE ENGAGED WITHOUT PRESIDENTIAL APPROVAL AND UPON THEIR SEPARATION FROM THE SERVICE NO IMPOUNDING OF THE SALARY IS REQUIRED. HOWEVER, THE MERE INCLUSION OF THE WORDS "WHEN ACTUALLY EMPLOYED" IN AN APPOINTMENT OR CONTRACT OF EMPLOYMENT INTENDED TO BE PERMANENT DOES NOT RENDER THE EMPLOYMENT TEMPORARY NOR EXCEPT IT FROM THE PROVISIONS OF SECTION 203 OF SAID ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JANUARY 24, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 9, 1933, REQUESTING A DECISION UPON THE QUESTIONS SUBMITTED IN A LETTER OF DECEMBER 2, 1932, FROM THE DIRECTOR, BUREAU OF MINES, TO THE CHIEF CLERK OF YOUR DEPARTMENT AS FOLLOWS:

IN RESPONSE TO THIS BUREAU'S INQUIRY OF JULY 26, REGARDING THE APPLICATION OF THE ECONOMY ACT TO CERTAIN EMPLOYEES OF THE BUREAU OF MINES, YOU STATED IN YOUR LETTER OF AUGUST 9, THAT:

"THE EMPLOYMENT OF MECHANICS ON AN ANNUAL BASIS LIMITED TO 30 DAYS MAY BE REGARDED AS TEMPORARY AND, THEREFORE, FALLING UNDER EXCEPTION (B) OF SECTION 203. HOWEVER, THE EMPLOYMENT OF LABORERS AT HOURLY RATES FOR INDEFINITE PERIODS IS NOT CONSIDERED TEMPORARY AND IS SUBJECT TO THE RESTRICTIONS OF SECTION 203.'

RECONSIDERATION OF THE LATTER RULING IS REQUESTED. THE BUREAU OF MINES EMPLOYS A CONSIDERABLE NUMBER OF LABORERS AT HOURLY RATES "WHEN ACTUALLY EMPLOYED," AND IT IS BELIEVED THAT THESE EMPLOYEES ARE TEMPORARY, REGARDLESS OF THE DURATION OF THEIR EMPLOYMENT, AND THUS EXCEPTED FROM THE PROVISIONS OF SECTION 203.

IN A DECISION OF THE COMPTROLLER GENERAL DATED OCTOBER 29, 1932, TO E. A. HUDSON, SPECIAL DISBURSING AGENT, AMARILLO, TEXAS, RELATIVE TO PAYING SUCH LABORERS FOR SATURDAY HALF HOLIDAYS, IT WAS HELD THAT: "EVEN THOUGH CERTAIN OF THE EMPLOYEES, DUE TO THE EXIGENCIES OF THE SERVICE, MAY HAVE STEADY EMPLOYMENT FOR THE NUMBER OF HOURS FIXED FOR REGULAR FULL-TIME EMPLOYEES, AND OVER A CONSIDERABLE PERIOD OF TIME, THEY ARE NOT ENTITLED UNDER THEIR EXISTING CONTRACTS OF EMPLOYMENT TO BE PAID FOR SATURDAY AFTERNOONS ON WHICH NO WORK IS PERFORMED.' IT APPEARS THAT THIS RULING IS BASED ON THE FACT THAT THE EMPLOYEES MUST BE CONSIDERED AS TEMPORARY REGARDLESS OF THE DURATION OR STEADINESS OF EMPLOYMENT--- IN OTHER WORDS, THAT THE CONTRACT OF EMPLOYMENT IS THE DECIDING FACTOR.

IN VIEW OF THE DECISION OF THE COMPTROLLER GENERAL DATED NOVEMBER 4, 1932 (A-45402), IT IS CLEAR THAT THESE EMPLOYEES MUST BE CONSIDERED AS TEMPORARY IN APPLYING THE FURLOUGH PROVISIONS OF THE ECONOMY ACT, AND THUS THEIR COMPENSATION IS SUBJECT TO A REDUCTION WITHOUT A COMPENSATORY FURLOUGH BEING GRANTED TO THEM.

IT WOULD APPEAR INCONSISTENT TO CLASSIFY THESE EMPLOYEES AS TEMPORARY WHEN APPLYING THE FURLOUGH PROVISIONS AND THE SATURDAY HALF HOLIDAY LAW, AND AT THE SAME TIME TO HOLD THAT THEY ARE NOT TEMPORARY WITHIN THE MEANING OF SECTION 203 OF THE ECONOMY ACT.

FURTHERMORE, IT WOULD APPEAR IMPRACTICABLE TO APPLY SECTION 203 TO SUCH CASES. IN THE EVENT OF THE SEPARATION FROM THE SERVICE OF ONE OF SUCH EMPLOYEES, EVEN THOUGH THE VACANCY WERE NOT FILLED, IT WOULD BE IMPOSSIBLE TO ASCERTAIN ACCURATELY THE AMOUNT OF THE SAVING SUBJECT TO IMPOUNDMENT. ALTHOUGH SOME OF THE EMPLOYEES HAVE SUBSTANTIALLY STEADY WORK, OTHERS WORK FROM TIME TO TIME ONLY AS NEEDED, AND AT THE TIME OF SEPARATION IT COULD NOT BE FORETOLD HOW MUCH A PARTICULAR EMPLOYEE WOULD HAVE EARNED BUT FOR HIS SEPARATION. PRACTICALLY, THERE WOULD BE NO SAVING, SINCE THE SEPARATION OF ONE EMPLOYEE WOULD RESULT IN ADDITIONAL TIME BEING WORKED BY OTHERS, WITH A CORRESPONDING INCREASE IN THEIR EARNINGS.

IF THE DEPARTMENT ADHERES TO ITS INSTRUCTIONS OF AUGUST 9, IT IS REQUESTED THAT A RULING BE OBTAINED FROM THE COMPTROLLER GENERAL ON THE FOLLOWING QUESTIONS:

(1) IN CASE OF THE SEPARATION FROM THE SERVICE OF AN EMPLOYEE WHOSE APPOINTMENT IS AT AN HOURLY RATE "WHEN ACTUALLY EMPLOYED," IS IT NECESSARY TO IMPOUND ANY AMOUNT IN THE TREASURY? HOW WOULD SUCH AMOUNT BE COMPUTED?

(2) IS IT PERMISSIBLE TO EMPLOY UNSKILLED LABORERS BY THE HOUR, ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR INDEFINITE PERIODS WITHOUT OBTAINING PRESIDENTIAL AUTHORITY?

THE ANSWER TO THE QUESTIONS SUBMITTED IS DEPENDENT UPON WHETHER THE EMPLOYEES ARE TEMPORARY OR PERMANENT, AS SECTION 203 OF THE ECONOMY ACT, 47 STAT. 403, PROVIDES:

NO APPROPRIATION AVAILABLE TO ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR TO THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA DURING THE FISCAL YEAR ENDING JUNE 30, 1933 SHALL BE USED TO PAY THE COMPENSATION OF AN INCUMBENT APPOINTED TO ANY CIVIL POSITION UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHICH IS VACANT ON JULY 1, 1932, OR TO ANY SUCH POSITION WHICH MAY BECOME VACANT AFTER SUCH DATE: PROVIDED, THAT THIS INHIBITION SHALL NOT APPLY (A) TO ABSOLUTELY ESSENTIAL POSITIONS THE FILLING OF WHICH MAY BE AUTHORIZED OR APPROVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES, (B) TO TEMPORARY, EMERGENCY, SEASONAL, OR COOPERATIVE POSITIONS, OR (C) TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS OF THE COAST GUARD. THE APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS UNEXPENDED BY THE OPERATION OF THIS SECTION SHALL NOT BE USED FOR ANY OTHER PURPOSES BUT SHALL BE IMPOUNDED AND RETURNED TO THE TREASURY, AND A REPORT OF ALL SUCH VACANCIES, THE NUMBER THEREOF FILLED, AND THE AMOUNTS UNEXPENDED, FOR THE PERIOD BETWEEN JULY 1, 1932, AND OCTOBER 31, 1932, SHALL BE SUBMITTED TO CONGRESS ON THE FIRST DAY OF THE NEXT REGULAR SESSION: PROVIDED, THAT SUCH IMPOUNDING OF FUNDS MAY BE WAIVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES IN CONNECTION WITH ANY APPROPRIATION OR PORTION OF APPROPRIATION, WHEN, IN HIS JUDGMENT, SUCH ACTION IS NECESSARY AND IN THE PUBLIC INTEREST.

IN THE DECISION OF OCTOBER 29, 1932, A-45114, TO E. A. HUDSON, SPECIAL DISBURSING AGENT, BUREAU OF MINES, IT WAS HELD THAT EVEN THOUGH CERTAIN EMPLOYEES, DUE TO THE EXIGENCIES OF THE SERVICE, MAY HAVE STEADY EMPLOYMENT FOR A NUMBER OF HOURS FIXED FOR REGULAR FULL TIME EMPLOYEES AND OVER A CONSIDERABLE PERIOD OF TIME, THEY ARE NOT ENTITLED "UNDER THEIR EXISTING CONTRACTS OF EMPLOYMENT" TO BE PAID FOR SATURDAY AFTERNOON ON WHICH NO WORK IS PERFORMED. THIS RULING WAS BASED UPON THE CONDITIONS OF EMPLOYMENT STATED IN MR. HUDSON'S LETTER AS FOLLOWS:

IN ADDITION TO THE PER ANNUM EMPLOYEES, THE PLANT ROLLS CARRY A NUMBER OF UNSKILLED LABORERS. THE CONTRACTS OF EMPLOYMENT OF THESE MEN ARE ALL AT A SPECIFIED RATE PER HOUR "WHEN ACTUALLY EMPLOYED.' THE RATES ARE 52 CENTS, 50 CENTS, 48 CENTS, 45 CENTS, AND 40 CENTS, DEPENDING ON THE CAPABILITIES OF THE MEN AND THE WORK THEY ORDINARILY PERFORM.

THESE LABORERS ARE ALL INTERMITTENT, IN THEORY AT LEAST, BECAUSE THEIR CONTRACTS PROVIDE THAT THEY ARE TO BE PAID ONLY WHEN ACTUALLY EMPLOYED, AND IT IS UNDERSTOOD THAT THEY WILL BE LAID OFF WHENEVER THERE IS NO WORK FOR THEM. IN PRACTICE, HOWEVER, SINCE THE VOLUME OF LABOR TO BE PERFORMED AT THE PLANT IS FAIRLY UNIFORM, MOST OF THE MEN HAVE SUBSTANTIALLY STEADY WORK.

THE DETERMINATION OF WHETHER EMPLOYEES ARE PERMANENT OR TEMPORARY IS DEPENDENT UPON THE FACTS. AS A GENERAL PROPOSITION, EMPLOYEES ENGAGED UNDER CONTRACT OR AGREEMENT AT PER HOUR RATES "WHEN ACTUALLY EMPLOYED" MUST BE CONSIDERED TEMPORARY AND EXEMPTED FROM THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT. SUCH TEMPORARY EMPLOYEES MAY BE ENGAGED WITHOUT PRESIDENTIAL APPROVAL AND UPON THEIR SEPARATION FROM THE SERVICE NO IMPOUNDING OF THE SALARY IS REQUIRED. HOWEVER, THE MERE INCLUSION OF THE WORDS "WHEN ACTUALLY EMPLOYED" IN AN APPOINTMENT OR CONTRACT OF EMPLOYMENT INTENDED TO BE PERMANENT DOES NOT RENDER THE EMPLOYMENT TEMPORARY NOR EXCEPT IT FROM THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT. YOUR SUBMISSION IS ANSWERED ACCORDINGLY.