A-70518, FEBRUARY 13, 1936, 15 COMP. GEN. 700

A-70518: Feb 13, 1936

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5-DAY WEEK SCHEDULE ARE ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS FALLING ON A NONWORK DAY. ARE ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS FALLING ON A NONWORK DAY NOT IN EXCESS OF THE RATE AND AMOUNT PAYABLE FOR THE SHORTEST REGULAR WORK DAY. 1936: THERE WAS RECEIVED YOUR LETTER OF JANUARY 27. WILL FALL ON SATURDAYS. A LEGAL HOLIDAY WILL FALL ON A NORMAL NON-WORK DAY UNDER THE EXISTING 40- HOUR WORK WEEK AS ESTABLISHED FOR THE FIELD SERVICE OF THE NAVAL ESTABLISHMENT. FOR WHICH HE IS ENTITLED TO 48 HOURS' PAY. IS HE ENTITLED TO GRATUITY PAY FOR THE HOLIDAY? IT IS ASSUMED THAT THE PER HOUR. OR PIECE WORK EMPLOYEES WHOSE REGULAR 40-HOUR WORK WEEK IS FIXED AS FROM MONDAY TO FRIDAY. OF THE WEEKS IN WHICH THESE SATURDAY HOLIDAYS WILL OCCUR.

A-70518, FEBRUARY 13, 1936, 15 COMP. GEN. 700

COMPENSATION - HOLIDAYS - FORTY-HOUR WEEK PER DIEM EMPLOYEES ON A 40-HOUR, 5-DAY WEEK SCHEDULE ARE ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS FALLING ON A NONWORK DAY. EMPLOYEES OF THE NAVAL ESTABLISHMENT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, ON A 40-HOUR, 5-DAY WEEK SCHEDULE, WHOSE REGULAR WORK DAY VARIES AS TO LENGTH AND WHOSE RATE OF PAY HAS BEEN FIXED BY THE SECRETARY OF THE NAVY ON A PER DIEM BASIS PURSUANT TO AUTHORITY OF THE ACT OF MARCH 3, 1909, 35 STAT. 754, ARE ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS FALLING ON A NONWORK DAY NOT IN EXCESS OF THE RATE AND AMOUNT PAYABLE FOR THE SHORTEST REGULAR WORK DAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 13, 1936:

THERE WAS RECEIVED YOUR LETTER OF JANUARY 27, 1936, AS FOLLOWS:

THE NEXT THREE LEGAL HOLIDAYS, NAMELY, FEBRUARY 22ND, WASHINGTON'S BIRTHDAY; MAY 30TH, DECORATION DAY; AND JULY 4TH, INDEPENDENCE DAY, WILL FALL ON SATURDAYS. THUS FOR THE FIRST TIME SUBSEQUENT TO THE PASSAGE OF THE INDEPENDENT OFFICES APPROPRIATION ACT, OF 28 MARCH, 1934 (SECTION 23), A LEGAL HOLIDAY WILL FALL ON A NORMAL NON-WORK DAY UNDER THE EXISTING 40- HOUR WORK WEEK AS ESTABLISHED FOR THE FIELD SERVICE OF THE NAVAL ESTABLISHMENT.

IN VIEW OF YOUR DECISION A-54807 OF 19 MAY, 1934, TO THE SECRETARY OF THE NAVY (13 C.G. 371) REPLYING AFFIRMATIVELY TO QUESTION 9:

"WHAT PAY SHALL A PER HOUR, PER DIEM, OR PIECE WORK EMPLOYEE RECEIVE FOR A LEGAL HOLIDAY WHICH OCCURS ON A NON-WORK DAY OF HIS 5-DAY, 40 HOUR WORK WEEK, WHERE THE EMPLOYEE HAS ALREADY PERFORMED 40 HOURS WORK IN THAT WEEK AND DOES NOT WORK ON THE HOLIDAY? FOR EXAMPLE, THE EMPLOYEE HAS WORKED 5 DAYS, 40 HOURS, MONDAY TO FRIDAY, INCLUSIVE, FOR WHICH HE IS ENTITLED TO 48 HOURS' PAY. THE LEGAL HOLIDAY FALLS ON A SATURDAY OF THE SAME WORK WEEK AND HE DOES NOT WORK ON THAT DAY. IS HE ENTITLED TO GRATUITY PAY FOR THE HOLIDAY?

IT IS ASSUMED THAT THE PER HOUR, PER DIEM, OR PIECE WORK EMPLOYEES WHOSE REGULAR 40-HOUR WORK WEEK IS FIXED AS FROM MONDAY TO FRIDAY, INCLUSIVE, OF THE WEEKS IN WHICH THESE SATURDAY HOLIDAYS WILL OCCUR, WILL BE ENTITLED TO GRATUITY PAY AS PROVIDED BY THE ACTS OF JANUARY 6, 1885, 23 STAT. 516, AND FEBRUARY 23, 1887, 24 STAT. 644, AND FURTHER, THAT THE HOLIDAY PAY SHALL BE COMPUTED ON THE SAME BASIS AS FOR THE REGULAR WORK DAYS OF THESE EMPLOYEES DURING THESE WORK WEEKS. CONFIRMATION OF THE NAVY DEPARTMENT'S UNDERSTANDING IN THESE RESPECTS IS REQUESTED.

A FEW PER DIEM EMPLOYEES OF THE NAVAL FIELD SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, IN CLERICAL, DRAFTING, AND MESSENGER RATINGS, WORK 8 HOURS PER DAY, MONDAY TO THURSDAY, INCLUSIVE, AND 7 HOURS ON FRIDAYS. THEIR PAY IS PROPORTIONATELY ADJUSTED, BEING PAID FOR 8 HOURS ON THE DAYS MONDAY TO THURSDAY AND FOR 7 HOURS ON FRIDAY. SHOULD THEIR GRATUITY PAY FOR THE HOLIDAYS BE COMPUTED ON THE 7 OR 8 HOUR BASIS?

YOUR UNDERSTANDING OF THE RULE STATED IN THE DECISION OF MAY 19, 1934, 13 COMP. GEN. 370, QUOTED IN YOUR LETTER IS CONFIRMED. THAT IS, BONA FIDE PER DIEM EMPLOYEES ON A 40-HOUR, 5-DAY WEEK SCHEDULE, ARE ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS FALLING ON A NONWORK DAY.

IN DECISION OF MAY 10, 1935, 14 COMP. GEN. 818, 820, TO THE SECRETARY OF AGRICULTURE, IT WAS STATED AS FOLLOWS:

THE ACTS OF JANUARY 6, 1885 (23 STAT. 516); FEBRUARY 23, 1887 (24 STAT. 644); AND JUNE 28, 1894 (28 STAT. 96), PROVIDE, RESPECTIVELY, AS FOLLOWS:

"THAT THE EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER DIEM EMPLOYEES OF THE GOVERNMENT ON DUTY AT WASHINGTON, OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE FOLLOWING HOLIDAYS, TO WIT: THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE FOURTH DAY OF JULY, THE TWENTY-FIFTH DAY OF DECEMBER, AND SUCH DAYS AS MAY BE DESIGNATED BY THE PRESIDENT AS DAYS FOR NATIONAL THANKSGIVING, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

"THAT ALL PER DIEM EMPLOYEES OF THE GOVERNMENT, ON DUTY AT WASHINGTON OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE DAY OF EACH YEAR WHICH IS CELEBRATED AS "MEMORIAL" OR ,DECORATION DAY" AND THE FOURTH OF JULY OF EACH YEAR, AS HOLIDAY, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

"THAT THE FIRST MONDAY OF SEPTEMBER IN EACH YEAR, BEING THE DAY CELEBRATED AND KNOWN AS ,LABOR'S HOLIDAY," IS HEREBY MADE A LEGAL PUBLIC HOLIDAY, TO ALL INTENTS AND PURPOSES IN THE SAME MANNER AS CHRISTMAS, THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE THIRTIETH DAY OF MAY, AND THE FOURTH DAY OF JULY ARE NOW MADE BY LAW PUBLIC HOLIDAYS.'

THERE MAY HAVE BEEN A MISCONCEPTION AS TO THE MEANING OF THE PHRASE "ALL OTHER PER DIEM EMPLOYEES" APPEARING IN THE FIRST-MENTIONED STATUTE AND TO WHICH THE REMAINING STATUTES REFER. THE USE OF THE WORD "OTHER" JUSTIFIES APPLICATION OF THE WELL-KNOWN EJUSDEM GENERIS RULE WHEREBY THE GENERAL TERM OR DESCRIPTION "PER DIEM" EMPLOYEES OF THE GOVERNMENT SHOULD BE UNDERSTOOD TO INCLUDE GENERALLY THOSE HAVING DUTIES SIMILAR IN NATURE AND KIND TO THOSE SPECIFICALLY ENUMERATED IN THE STATUTE, VIZ., "EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING" PAID ON A PER DIEM BASIS; THAT IS, PRIMARILY THOSE EMPLOYEES WHO ARE IN A RECOGNIZED TRADE OR CRAFT OR SIMILAR OCCUPATION (14 COMP. GEN. 388). FURTHERMORE, PER DIEM EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY STATUTES, SUPRA, INCLUDE ONLY THOSE EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED BY LAW, OR REGULATION ISSUED PURSUANT TO LAW, TO BE MEASURED BY THE DAY--- NOT EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED TO BE MEASURED OTHER THAN BY THE DAY, BUT WHO ARE PAID ON A DAILY BASIS FOR ADMINISTRATIVE CONVENIENCE OR FOR ANY OTHER REASON. ADMINISTRATIVE OFFICE MAY NOT, MERELY BY MEASURING EMPLOYEES' COMPENSATION BY THE DAY, BRING THEM WITHIN THE TERMS OF THE HOLIDAY STATUTES.

THE ACT OF MARCH 3, 1909, 35 STAT. 754, PROVIDES, IN PART, AS FOLLOWS:

* * * THAT HEREAFTER THE RATES OF PAY OF THE CLERICAL, DRAFTING, INSPECTION, AND MESSENGER FORCE AT NAVY-YARDS AND NAVAL STATIONS AND OTHER STATIONS AND OFFICES UNDER THE NAVY DEPARTMENT SHALL BE PAID FROM LUMP APPROPRIATIONS AND SHALL BE FIXED BY THE SECRETARY OF THE NAVY ON A PER ANNUM OR PER DIEM BASIS AS HE MAY ELECT; * * *.

AS TO THE EMPLOYEES WITHIN THE CONTINENTAL UNITED STATES, OF THE CLASSES MENTIONED IN THE STATUTE, SAID STATUTE HAS BEEN SUPERSEDED BY SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, 10 COMP. GEN. 216, 219, BUT THE LATTER STATUTE HAS NOT BEEN EXTENDED TO CIVILIAN EMPLOYEES OUTSIDE THE CONTINENTAL UNITED STATES.

AS THE COMPENSATION OF EMPLOYEES WITH CLERICAL, DRAFTING, AND MESSENGER RATINGS UNDER THE NAVAL ESTABLISHMENT OUTSIDE THE CONTINENTAL UNITED STATES, MENTIONED IN YOUR CONCLUDING PARAGRAPH, HAS BEEN FIXED ON A PER DIEM BASIS AS SPECIFICALLY AUTHORIZED BY LAW, THEY ARE TO BE REGARDED AS BONA FIDE PER DIEM EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY STATUTES.

WHERE THE REGULAR WORK DAY OF PER HOUR OR PER DIEM EMPLOYEES ON A FIVE- DAY WEEK SCHEDULE VARIES AS TO LENGTH, PAYMENT OF GRATUITY PAY FOR A HOLIDAY FALLING ON A NONWORKDAY--- SATURDAY IN THIS INSTANCE--- SHOULD NOT EXCEED THE RATE PAYABLE FOR THE SHORTEST REGULAR WORK DAY. ACCORDINGLY, THE GRATUITY PAY FOR THE EMPLOYEES MENTIONED IN YOUR CONCLUDING PARAGRAPH FOR HOLIDAYS FALLING ON SATURDAY, A NONWORKDAY, SHOULD BE COMPUTED ON A BASIS OF SEVEN HOURS.