A-82625, DECEMBER 30, 1936, 16 COMP. GEN. 625

A-82625: Dec 30, 1936

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ARE ENTITLED TO PAY FOR DECEMBER 26. ON WHICH DAY THE WORK DAY WAS SHORTENED BY EXECUTIVE ORDER. IF WORK IS PERFORMED ON THAT DAY FROM THE USUAL BEGINNING TIME UNTIL THE HOUR SPECIFIED. WHEN THE WORK DAY WAS SHORTENED BY EXECUTIVE ORDER. ARE FOR COMPUTATION UNDER THE RULES APPLICABLE TO THE SHORT DAY ON SATURDAY. AN EXECUTIVE ORDER CANNOT PURPORT TO GRANT COMPENSATION TO WHICH EMPLOYEES ARE NOT OTHERWISE ENTITLED BY LAW UNDER THEIR APPOINTMENTS OR CONTRACTS OF EMPLOYMENT. IS AS FOLLOWS: UNDER AN ACT OF CONGRESS APPROVED JUNE 20. WAS DECLARED A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA. WOULD AN EMPLOYEE WHOSE APPOINTMENT IS ON THE BASIS OF WORK BY THE DAY. ARE EMPLOYEES APPOINTED ON A DAILY BASIS.

A-82625, DECEMBER 30, 1936, 16 COMP. GEN. 625

COMPENSATION AND LEAVES OF ABSENCE - HOLIDAYS BY PUBLIC RESOLUTION AND EXECUTIVE ORDER - DISTRICT OF COLUMBIA AND FIELD SERVICE - PER DIEM, PER HOUR, AND WHEN ACTUALLY EMPLOYED EMPLOYEES ALL EMPLOYEES IN THE DISTRICT OF COLUMBIA, REGARDLESS OF THE BASIS OF EMPLOYMENT, AND INCLUDING THOSE EMPLOYED BY THE DAY AND PAID ONLY WHEN ACTUALLY EMPLOYED, ARE ENTITLED TO PAY FOR DECEMBER 26, 1936, DECLARED BY JOINT RESOLUTION OF JUNE 20, 1936, 49 STAT. 1568, TO BE A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA. EMPLOYEES IN THE GOVERNMENT FIELD SERVICE REGULARLY PAID ON THE BASIS OF THE DAY AND NOT BY THE HOUR, WHEN ACTUALLY EMPLOYED, MAY BE PAID A FULL DAY'S COMPENSATION FOR DECEMBER 24, 1936, ON WHICH DAY THE WORK DAY WAS SHORTENED BY EXECUTIVE ORDER, IF WORK IS PERFORMED ON THAT DAY FROM THE USUAL BEGINNING TIME UNTIL THE HOUR SPECIFIED. LEAVES OF ABSENCE, WITH OR WITHOUT PAY, GRANTED GOVERNMENT FIELD SERVICE EMPLOYEES ON THURSDAY, DECEMBER 24, 1936, WHEN THE WORK DAY WAS SHORTENED BY EXECUTIVE ORDER, ARE FOR COMPUTATION UNDER THE RULES APPLICABLE TO THE SHORT DAY ON SATURDAY. AN EXECUTIVE ORDER CANNOT PURPORT TO GRANT COMPENSATION TO WHICH EMPLOYEES ARE NOT OTHERWISE ENTITLED BY LAW UNDER THEIR APPOINTMENTS OR CONTRACTS OF EMPLOYMENT. THE EXECUTIVE ORDER EXCUSING FIELD SERVICE EMPLOYEES FROM DUTY THE ENTIRE DAY ON DECEMBER 26, 1936 AND DISTRICT OF COLUMBIA AND FIELD SERVICE EMPLOYEES ON JANUARY 2, 1937, DOES NOT OPERATE TO PLACE THESE SATURDAYS IN ANY DIFFERENT STATUS THAN ANY OTHER SATURDAY OF THE YEAR WITH RESPECT TO THE GRANTING OF LEAVE OF ABSENCE, WITH OR WITHOUT PAY, TO THESE EMPLOYEES NOT PAID BY THE YEAR OR MONTH. THE EXECUTIVE ORDER EXCUSING FIELD SERVICE EMPLOYEES FROM DUTY THE ENTIRE DAY ON DECEMBER 26, 1936, AND DISTRICT OF COLUMBIA AND FIELD SERVICE EMPLOYEES ON JANUARY 2, 1937, DOES NOT AUTHORIZE PAYMENT OF COMPENSATION TO EMPLOYEES APPOINTED AND PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS WHO PERFORM NO WORK ON THOSE DAYS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 30, 1936:

YOUR LETTER OF DECEMBER 23, 1936, IS AS FOLLOWS:

UNDER AN ACT OF CONGRESS APPROVED JUNE 20, 1936, DECEMBER 26, 1936, WAS DECLARED A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA. THIS ACT CONTAINS THE FOLLOWING PROVISO,"PROVIDED, THAT ALL EMPLOYEES OF THE UNITED STATES GOVERNMENT IN THE DISTRICT OF COLUMBIA AND ALL EMPLOYEES OF THE DISTRICT OF COLUMBIA SHALL BE ENTITLED TO PAY FOR SUCH HOLIDAY THE SAME AS ON OTHER DAYS.' UNDER THIS ACT, WOULD AN EMPLOYEE WHOSE APPOINTMENT IS ON THE BASIS OF WORK BY THE DAY, TO BE PAID ONLY WHEN ACTUALLY EMPLOYED, BE ENTITLED TO THE BENEFITS OF THIS ACT AND BE PAID WITHOUT REPORTING FOR DUTY?

AN EXECUTIVE ORDER ISSUED BY THE PRESIDENT ON NOVEMBER 27, 1936, CLOSES THE EXECUTIVE DEPARTMENTS, BOTH IN WASHINGTON AND IN THE FIELD, AT 1 O- CLOCK P.M., ON THURSDAY, DECEMBER 24, 1936, AND THE ENTIRE DAY ON SATURDAY, JANUARY 2, 1937. THIS EXECUTIVE ORDER ALSO CLOSES ALL FIELD SERVICES FOR THE ENTIRE DAY ON SATURDAY, DECEMBER 26, 1936. ARE EMPLOYEES APPOINTED ON A DAILY BASIS, TO BE PAID WHEN ACTUALLY EMPLOYED, ENTITLED TO LEAVE WITH PAY FOR THE AFTERNOON OF THURSDAY, DECEMBER 24, AND THE ENTIRE DAY ON SATURDAY, DECEMBER 26, AND THE ENTIRE DAY ON SATURDAY, JANUARY 2, 1937? IF GRANTED LEAVE WITH PAY ON SATURDAY, DECEMBER 26, AND SATURDAY, JANUARY 2, ARE THEY ENTITLED TO PAY FOR A FULL DAY OR FOR ONE-HALF DAY?

AS IT IS VERY NECESSARY TO KNOW WHETHER OR NOT THESE EMPLOYEES SHOULD BE PAID FOR THE HOLIDAYS ENUMERATED ABOVE, AN EARLY REPLY WILL BE GREATLY APPRECIATED.

JOINT RESOLUTION OF JUNE 20, 1936, 49 STAT. 1568, PROVIDES:

THAT DECEMBER 26, 1936, IS HEREBY DECLARED TO BE A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA FOR ALL PURPOSES: PROVIDED, THAT ALL EMPLOYEES OF THE UNITED STATES GOVERNMENT IN THE DISTRICT OF COLUMBIA AND ALL EMPLOYEES OF THE DISTRICT OF COLUMBIA SHALL BE ENTITLED TO PAY FOR SUCH HOLIDAY THE SAME AS ON OTHER DAYS.

THE JOINT RESOLUTION, SUPRA, GRANTS PAY TO ALL EMPLOYEES IN THE DISTRICT OF COLUMBIA FOR DECEMBER 26, 1936, THE SAME AS THOUGH WORK WAS PERFORMED ON THAT DAY. SEE DECISION OF DECEMBER 17, 1936, A 82290, 16 COMP. GEN. 603. HENCE, IN COMPUTING COMPENSATION OF ALL EMPLOYEES IN THE DISTRICT OF COLUMBIA, REGARDLESS OF THE BASIS OF EMPLOYMENT AND INCLUDING THOSE EMPLOYED BY THE DAY AND PAID ONLY WHEN ACTUALLY EMPLOYED, DECEMBER 26, 1936, IS REQUIRED TO BE REGARDED AS A DUTY DAY, THAT IS AS THOUGH THE EMPLOYEE HAD ACTUALLY WORKED ON SAID DAY. ACCORDINGLY, THE QUESTION CONTAINED IN YOUR FIRST PARAGRAPH WHICH IS UNDERSTOOD TO RELATE ONLY TO EMPLOYEES IN THE DISTRICT OF COLUMBIA, IS ANSWERED IN THE AFFIRMATIVE.

EXECUTIVE ORDER NO. 7499, DATED NOVEMBER 27, 1936, IS AS FOLLOWS:

BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED STATES, IT IS HEREBY ORDERED AS FOLLOWS:

1. THE SEVERAL EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER GOVERNMENTAL AGENCIES IN THE DISTRICT OF COLUMBIA, INCLUDING THE GOVERNMENT PRINTING OFFICE AND THE NAVY YARD AND NAVAL STATIONS, SHALL BE CLOSED AT 1 O-CLOCK P.M. ON THURSDAY, DECEMBER 24, 1936, THE DAY PRECEDING CHRISTMAS DAY, AND THE ENTIRE DAY ON SATURDAY JANUARY 2, 1937, THE DAY FOLLOWING NEW YEAR'S DAY; AND ALL EMPLOYEES IN THE FEDERAL SERVICE IN THE DISTRICT OF COLUMBIA, AND IN THE FIELD SERVICE OF THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER AGENCIES OF THE GOVERNMENT, EXCEPT THOSE WHO MAY FOR SPECIAL PUBLIC REASONS BE EXCLUDED FROM THE PROVISIONS OF THIS ORDER BY THE HEADS OF THEIR RESPECTIVE DEPARTMENTS, ESTABLISHMENTS, OR AGENCIES, OR THOSE WHOSE ABSENCE FROM DUTY WOULD BE INCONSISTENT WITH THE PROVISIONS OF EXISTING LAW, SHALL BE EXCUSED FROM DUTY AT 1 O-CLOCK P.M. ON THURSDAY, DECEMBER 24, 1936, AND THE ENTIRE DAY ON SATURDAY, JANUARY 2, 1937.

2. ALL EMPLOYEES IN THE FIELD SERVICE OF THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER AGENCIES OF THE GOVERNMENT, EXCEPT THOSE WHO MAY FOR SPECIAL PUBLIC REASONS BE EXCLUDED FROM THE PROVISIONS OF THIS ORDER BY THE HEADS OF THEIR RESPECTIVE DEPARTMENTS, ESTABLISHMENTS, OR AGENCIES, OR THOSE WHOSE ABSENCE FROM DUTY WOULD BE INCONSISTENT WITH THE PROVISIONS OF EXISTING LAW, SHALL BE EXCUSED FROM DUTY THE ENTIRE DAY ON SATURDAY, DECEMBER 26, 1936, WHICH DAY HAS BEEN DECLARED A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA BY PUBLIC RESOLUTION NO. 114, 74TH CONGRESS.

3. FOR THE PURPOSES OF THIS ORDER, IN ESTABLISHMENTS OR AGENCIES IN WHICH THE EMPLOYEES WORK IN SHIFTS, SUCH EMPLOYEES SHALL, SUBJECT TO THE FOREGOING PROVISIONS, BE EXCUSED FROM DUTY AFTER FOUR HOURS OF WORK ON THURSDAY, DECEMBER 24, 1936, AND FROM ALL DUTY ON SATURDAY, JANUARY 2, 1937, AND SUCH EMPLOYEES WHO ARE AFFECTED BY PARAGRAPH 2 OF THIS ORDER SHALL, SUBJECT TO THE PROVISIONS OF THAT PARAGRAPH, BE EXCUSED FROM ALL DUTY ON SATURDAY, DECEMBER 26, 1936.

AN EXECUTIVE ORDER CANNOT PURPORT TO GRANT COMPENSATION TO WHICH EMPLOYEES ARE NOT OTHERWISE ENTITLED BY LAW UNDER THEIR APPOINTMENTS OR CONTRACTS OF EMPLOYMENT, AND THE EXECUTIVE ORDER IN THIS INSTANCE DOES NOT PURPORT TO DO SO. IT OPERATES TO SHORTEN THE WORK DAY FOR FEDERAL AND DISTRICT OF COLUMBIA EMPLOYEES ON DECEMBER 24, 1936, EXCEPT FOR THOSE WHOSE SERVICES CANNOT BE SPARED, AND MAKES DECEMBER 26, 1936, A NONWORK DAY IN THE FIELD AND JANUARY 2, 1937, A NONWORK DAY BOTH IN THE DISTRICT OF COLUMBIA AND IN THE FIELD.

IF THE EMPLOYEES TO WHOM YOU REFER ARE REGULARLY PAID ON THE BASIS OF THE DAY AND NOT ON THE BASIS OF THE HOUR, WHEN ACTUALLY EMPLOYED, A FULL DAY'S COMPENSATION MAY BE PAID FOR DECEMBER 24, 1936, IF WORK IS PERFORMED ON THAT DAY FROM THE USUAL TIME FOR BEGINNING WORK UNTIL 1 O CLOCK P.M. COMPARE 1 COMP. GEN. 210. IN COMPUTING LEAVE OF ABSENCE WITH OR WITHOUT PAY, THE EXISTING RULES APPLICABLE TO THE SHORT DAY ON SATURDAY ARE CONTROLLING WITH RESPECT TO DECEMBER 24, 1936.

WITH RESPECT TO THE GRANTING OF LEAVE OF ABSENCE WITH OR WITHOUT PAY TO EMPLOYEES WHO ARE NOT PAID BY THE YEAR OR THE MONTH, THE EXECUTIVE ORDER DOES NOT OPERATE TO PLACE DECEMBER 26, 1936, IN THE FIELD, OR JANUARY 2, 1937, BOTH IN THE DISTRICT OF COLUMBIA AND IN THE FIELD, IN ANY DIFFERENT STATUS THAN ANY OTHER SATURDAY OF THE YEAR. 8 COMP. GEN. 558. IF THE EMPLOYEES ARE EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," THEY ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162. SEE 15 COMP. GEN. 1058 AND SECTION 19 (F) (1) OF THE UNIFORM ANNUAL LEAVE REGULATIONS. THEREFORE, WITH RESPECT TO DECEMBER 26 IN THE FIELD AND JANUARY 2 IN THE DISTRICT OF COLUMBIA AND IN THE FIELD, THE EMPLOYEES REFERRED TO WHO PERFORM NO WORK BECAUSE OF THE EXECUTIVE ORDER ARE ENTITLED TO NO COMPENSATION.