A-79473, AUGUST 25, 1936, 16 COMP. GEN. 181

A-79473: Aug 25, 1936

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ARE EMPLOYED UNDER THE SAME CONDITIONS. ARE PAID AT THE SAME WAGE RATES ESTABLISHED BY EXECUTIVE ORDER NO. 6746. AS PERMANENT EMPLOYEES OF THE DEPARTMENT TO WHICH THE FUNDS ARE ALLOTTED. IT IS ONLY THOSE WORKERS WHO BECOME EMPLOYEES OF THE UNITED STATES THROUGH APPOINTMENT BY OR UNDER AUTHORITY DELEGATED FROM THE HEAD OF THE DEPARTMENT PURSUANT TO SECTION 169. THAT ARE ENTITLED TO ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY UNDER THE ACTS OF MARCH 14. IS AS FOLLOWS: REFERENCE IS MADE TO DECISIONS OF YOUR OFFICE A-75907. FURTHER REFERENCE IS MADE TO EXECUTIVE ORDERS NOS. 7409 AND 7410 DATED JULY 9. YOUR ATTENTION IS SPECIFICALLY INVITED TO THE STATUS OF THESE EMPLOYEES. THE BUREAU OF LABOR STATISTICS OF THIS DEPARTMENT IS SPONSORING THE URBAN STUDY OF CONSUMERS' PURCHASES.

A-79473, AUGUST 25, 1936, 16 COMP. GEN. 181

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - PROJECT WORKERS NOTWITHSTANDING WORKERS ENGAGED ON WORK PROJECTS FINANCED BY EMERGENCY FUNDS ALLOTTED TO A DEPARTMENT BY THE WORKS PROGRESS ADMINISTRATION, WORK THE SAME HOURS, ARE EMPLOYED UNDER THE SAME CONDITIONS, AND ARE PAID AT THE SAME WAGE RATES ESTABLISHED BY EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, AS PERMANENT EMPLOYEES OF THE DEPARTMENT TO WHICH THE FUNDS ARE ALLOTTED, AND EVEN THOUGH THEY TAKE AN OATH OF OFFICE, IT IS ONLY THOSE WORKERS WHO BECOME EMPLOYEES OF THE UNITED STATES THROUGH APPOINTMENT BY OR UNDER AUTHORITY DELEGATED FROM THE HEAD OF THE DEPARTMENT PURSUANT TO SECTION 169, REVISED STATUTES, AS AMENDED BY THE ACT OF JUNE 26, 1930, 46 STAT. 817, THAT ARE ENTITLED TO ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, AUGUST 25, 1936:

YOUR LETTER OF AUGUST 3, 1936, IS AS FOLLOWS:

REFERENCE IS MADE TO DECISIONS OF YOUR OFFICE A-75907, DATED JUNE 4 AND JUNE 25, 1936, AND A-76949, DATED JULY 2, 1936, ANSWERING SEVERAL QUESTIONS PRESENTED BY THE CIVIL SERVICE COMMISSION, WORKS PROGRESS ADMINISTRATION, AND THE TREASURY DEPARTMENT REGARDING ANNUAL AND SICK LEAVE BENEFITS PRESCRIBED IN PUBLIC, NO. 471, AND PUBLIC, NO. 472, 74TH CONGRESS, APPROVED MARCH 14, 1936. FURTHER REFERENCE IS MADE TO EXECUTIVE ORDERS NOS. 7409 AND 7410 DATED JULY 9, 1936. UNFORTUNATELY SOME DOUBT STILL EXISTS AS TO THE RIGHTS OF PREVAILING WAGE EMPLOYEES, IN ADMINISTRATIVE AND SUPERVISORY POSITIONS, AND YOUR ATTENTION IS SPECIFICALLY INVITED TO THE STATUS OF THESE EMPLOYEES. YOUR ADVICE WOULD BE APPRECIATED ON THE FOLLOWING QUESTIONS.

QUESTION 1. THE BUREAU OF LABOR STATISTICS OF THIS DEPARTMENT IS SPONSORING THE URBAN STUDY OF CONSUMERS' PURCHASES, A WORKS PROJECT, FINANCED BY FUNDS ALLOTTED BY THE WORKS PROGRESS ADMINISTRATION FROM THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935. THE EMPLOYEES INVOLVED WERE PREDESIGNATED BY THE BUREAU THRU THE UNITED STATES EMPLOYMENT SERVICE, WORKING THE SAME HOURS, EMPLOYED UNDER THE SAME CONDITIONS AND PAID AT THE SAME RATES, WHICH WERE ESTABLISHED IN EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, AS PERMANENT EMPLOYEES OF THE BUREAU FOR COMPARABLE DUTIES PERFORMED. THESE EMPLOYEES, WHILE NOT APPOINTED BY THE SECRETARY OF LABOR, DO TAKE THE PRESCRIBED OATH OF OFFICE, REQUIRED BY THE BUREAU. ADVICE IS REQUESTED AS TO WHETHER THESE EMPLOYEES, PAID AT RATES ESTABLISHED IN EXECUTIVE ORDER NO. 6746, ARE "PREVAILING WAGE" EMPLOYEES. IF NOT, WHAT ARE THEIR LEAVE RIGHTS?

QUESTION 2. YOUR FURTHER ADVICE WOULD BE APPRECIATED AS TO THE LEAVE STATUS OF THESE EMPLOYEES UNDER THE NEW ALLOTMENT OF FUNDS, FROM THE EMERGENCY RELIEF ACT OF 1936, BY ADVICE OF ALLOCATION OF FUNDS DIRECTLY TO THE SECRETARY OF LABOR. THESE EMPLOYEES WILL BE CONTINUED IN THEIR PRESENT POSITIONS AT THE SAME SALARY RATES AND REQUESTS WILL BE MADE FOR THEIR APPOINTMENTS UNDER THE USUAL ADMINISTRATIVE APPOINTMENT METHODS. UNDER THESE CIRCUMSTANCES WOULD THESE EMPLOYEES BE OFFICERS AND EMPLOYEES OF THE UNITED STATES AND ENTITLED TO SICK AND ANNUAL LEAVE OF ABSENCE WITH PAY? IF SO, WOULD THE LEAVE BE RETROACTIVE TO THE DATE OF THEIR ENTRANCE ON DUTY ON THE PROJECT?

AS APPOINTMENTS UNDER THE NEW FUNDS WILL BE MADE EFFECTIVE ON AUGUST 15, 1936, AN EARLY REPLY WOULD BE APPRECIATED.

IN DECISION OF JUNE 25, 1936, 15 COMP. GEN. 1129, IT WAS STATED AS FOLLOWS:

QUESTION 8 REFERRED TO IN YOUR LETTER WAS STATED AND ANSWERED IN THE DECISION OF JUNE 4, 1936, A-75907 (15 COMP. GEN. 1058), AS FOLLOWS:

"QUESTION 8. MAY ANNUAL LEAVE OR SICK LEAVE BE GRANTED TO PERSONS WHO ARE COMPENSATED OUT OF FUNDS APPROPRIATED FOR OR ALLOTTED TO THE WORKS PROGRESS ADMINISTRATION AND WHO COME WITHIN THE FOLLOWING GROUPS:

"/A) PERSONS ON A STATE, MUNICIPAL, OR OTHER PUBLIC BUT NON-FEDERAL PROJECT PAID SECURITY OR PREVAILING WAGES OUT OF FUNDS ALLOTTED BY W.P.A.;

"/B) PERSONS ON A FEDERAL PROJECT PAID SECURITY OR PREVAILING WAGES OUT OF FUNDS ALLOTTED BY W.P.A.;

"/C) PERSONS EMPLOYED IN ADMINISTRATIVE OR CLERICAL CAPACITY IN CONNECTION WITH W.P.A. PROJECTS WHO ARE PAID FROM FUNDS ALLOTTED BY W.P.A., BUT WHO ARE NOT DIRECTLY EMPLOYED IN THE CENTRAL OFFICE OF W.P.A. IN THE DISTRICT OF COLUMBIA OR AT ONE OF ITS DISTRICT OR LOCAL HEADQUARTERS. IT IS UNDERSTOOD, OF COURSE, THAT EMPLOYEES OF THE CENTRAL OFFICE AND THE DISTRICT OFFICES OF THE W.P.A. COME WITHIN THE TERMS OF PUBLIC, NO. 471, AND PUBLIC, NO. 472.

"THE CLASSES OF EMPLOYEES OR WORKERS MENTIONED IN PARAGRAPHS (A) AND (B) UNDER QUESTION 8 ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY, BUT AS BOTH OF THE LEAVE STATUTES OF MARCH 14, 1936, GRANT LEAVE TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED," WITH CERTAIN EXCEPTIONS, THE EMPLOYEES MENTIONED IN PARAGRAPH (C) OF QUESTION 8 ARE ENTITLED TO BOTH SICK AND ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND SUBJECT TO THE CONDITIONS OF SAID STATUTES.'

IT WAS UNDERSTOOD BY THIS OFFICE THAT THE EMPLOYEES FALLING WITHIN THE CLASS DESCRIBED UNDER CLASSIFICATION (A) SET FORTH IN YOUR LETTER CAME WITHIN THE CLASS OF WORKERS DESCRIBED IN GROUP (B) UNDER QUESTION 8 PRESENTED BY THE CIVIL SERVICE COMMISSION. THE LEAVE STATUTES ARE APPLICABLE TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED.' PERSONS ASSIGNED TO WORKS PROGRESS ADMINISTRATION PROJECTS BY OR THROUGH THE UNITED STATES EMPLOYMENT SERVICE FROM RELIEF ROLLS OR OTHERWISE, PURSUANT TO THE PROCEDURE PRESCRIBED BY EXECUTIVE ORDER NO. 7060, DATED JUNE 5, 1935, ARE "SECURITY WAGE WORKERS" AS DISTINGUISHED FROM "OFFICERS AND EMPLOYEES," AND ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY, IRRESPECTIVE OF THE CLASS OF WORK TO WHICH THEY ARE ASSIGNED; THAT IS, WHETHER "WHITE COLLAR," OR MECHANICAL OR LABOR WORK, AND NOTWITHSTANDING THEY ARE PAID PREVAILING WAGES PURSUANT TO EXCEPTION (E) TO THE SCHEDULE OF MONTHLY EARNINGS UNDER PART I OF EXECUTIVE ORDER NO. 7046, DATED MAY 20, 1935.

IN DECISION OF JULY 2, 1936, A-76949, 16 COMP. GEN. 1, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

EMPLOYEES WORKING ON A WORK RELIEF PROJECT, UNDER A DEPARTMENT, WHO ARE PAID AND EMPLOYED UNDER THE SAME CONDITIONS AS REGULAR EMPLOYEES OF THE DEPARTMENT, ARE ENTITLED TO ANNUAL AND SICK LEAVE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND MAY BE GRANTED SUCH LEAVE WHETHER ACCRUED WHILE EMPLOYED UNDER A REGULAR APPROPRIATION OR UNDER A WORK RELIEF APPROPRIATION PROVIDED THERE IS NO BREAK IN THE SERVICE.

IT IS UNDERSTOOD FROM YOUR LETTER THAT WHILE THE WORKERS REFERRED TO IN QUESTION ONE WERE PREDESIGNATED BY THE BUREAU OF LABOR STATISTICS, THROUGH THE UNITED STATES EMPLOYMENT SERVICE, THE STATEMENTS MADE UNDER YOUR QUESTION TWO INDICATE THAT THEY HAVE NOT HERETOFORE BEEN APPOINTED BY OR UNDER AUTHORITY DELEGATED FROM THE SECRETARY OF LABOR, A PREREQUISITE TO CONSTITUTING THEM OFFICERS OR EMPLOYEES OF THE UNITED STATES. BASED ON THE FACTS PRESENTED, THE WORKERS IN QUESTION DO NOT APPEAR ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF MARCH 14, 1936, AND THE UNIFORM LEAVE REGULATIONS WHILE THEY CONTINUE TO BE EMPLOYED UNDER THE CONDITIONS STATED IN QUESTION ONE.

REFERRING TO QUESTION TWO, IF THE SAME CONDITIONS PREVAIL AS STATED IN QUESTION ONE, AND IN ADDITION THEY ARE REGULARLY ISSUED ADMINISTRATIVE APPOINTMENTS, PURSUANT TO SECTION 169, REVISED STATUTES, AS AMENDED BY THE ACT OF JUNE 26, 1930, 46 STAT. 817, UNDER THE ALLOTMENT OF EMERGENCY FUNDS TO THE DEPARTMENT OF LABOR, AND TAKE THE OATH OF OFFICE AS SUCH, THEY WOULD BECOME OFFICERS OR EMPLOYEES OF THE UNITED STATES, AND ENTITLED TO LEAVE OF ABSENCE WITH PAY FROM AND AFTER THE EFFECTIVE DATES OF SUCH APPOINTMENTS.