A-91216, DECEMBER 20, 1937, 17 COMP. GEN. 519

A-91216: Dec 20, 1937

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COMPENSATION - PER DIEM EMPLOYEES - EXECUTIVE ORDER HOLIDAYS PER DIEM EMPLOYEES WHO PERFORM NO SERVICE ON A DAY DECLARED A HOLIDAY BY EXECUTIVE ORDER ARE NOT ENTITLED TO COMPENSATION THEREFOR IN THE ABSENCE OF A STATUTE SPECIFICALLY AUTHORIZING SUCH PAYMENT. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 26. IN WHICH IT IS HELD THAT . WHEN AN EXECUTIVE ORDER CLOSES AN OFFICE AND EXCUSES EMPLOYEES FROM DUTY AN ENTIRE DAY AND NO WORK IS PERFORMED ON THAT DAY AND THE DAY IS NOT CHARGED TO ANNUAL LEAVE. PER DIEM EMPLOYEES ARE NOT ENTITLED TO COMPENSATION (8 COMP. THEY ARE ENTITLED TO A FULL DAY'S COMPENSATION (8 COMP. HELDAS FOLLOWS: "EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHO ARE EMPLOYED FOR AN INDEFINITE PERIOD AND NOT BY THE DAY.

A-91216, DECEMBER 20, 1937, 17 COMP. GEN. 519

COMPENSATION - PER DIEM EMPLOYEES - EXECUTIVE ORDER HOLIDAYS PER DIEM EMPLOYEES WHO PERFORM NO SERVICE ON A DAY DECLARED A HOLIDAY BY EXECUTIVE ORDER ARE NOT ENTITLED TO COMPENSATION THEREFOR IN THE ABSENCE OF A STATUTE SPECIFICALLY AUTHORIZING SUCH PAYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 20, 1937:

YOUR LETTER OF DECEMBER 14, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 26, 1937 (A-90524), IN WHICH IT IS HELD THAT ,WHEN AN EXECUTIVE ORDER CLOSES AN OFFICE AND EXCUSES EMPLOYEES FROM DUTY AN ENTIRE DAY AND NO WORK IS PERFORMED ON THAT DAY AND THE DAY IS NOT CHARGED TO ANNUAL LEAVE, PER DIEM EMPLOYEES ARE NOT ENTITLED TO COMPENSATION (8 COMP. DEC. 219; 22 ID. 425; 2 COMP. GEN. 366; 8 ID. 558; 10 ID. 327; 17 ID. 298), BUT WHERE AN EXECUTIVE ORDER ONLY SHORTENS A WORKDAY AND PER DIEM EMPLOYEES WORK ON THAT DAY THE FULL TIME FIXED BY THE EXECUTIVE ORDER AS THE LENGTH OF THE WORKDAY, THEY ARE ENTITLED TO A FULL DAY'S COMPENSATION (8 COMP. DEC. 235; 16 COMP. GEN. 625).'

THE COMPTROLLER OF THE TREASURY IN A DECISION RENDERED OCTOBER 22, 1901 (8 COMP. DEC. 235), CITED IN THE ABOVE-QUOTED DECISION, HELDAS FOLLOWS:

"EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHO ARE EMPLOYED FOR AN INDEFINITE PERIOD AND NOT BY THE DAY, HOUR, OR PIECE, WHETHER THEIR COMPENSATION IS MEASURED BY THE DAY, MONTH, OR YEAR, ARE ENTITLED TO THEIR PAY FOR DAYS ON WHICH THE OFFICE IS CLOSED BY EXECUTIVE ORDER; BUT EMPLOYEES WHOSE COMPENSATION IS MEASURED BY THE HOUR ARE NOT ENTITLED FOR SUCH DAYS UNLESS THEY ARE REQUIRED TO WORK A CERTAIN NUMBER OF HOURS PER DAY.'

THE ATTORNEY GENERAL IN A LETTER TO THE SECRETARY TO THE PRESIDENT UNDER DATE OF DECEMBER 20, 1929, IN REFERENCE TO THE EXECUTIVE ORDER OF DECEMBER 12, 1929, EXCUSING FEDERAL EMPLOYEES IN THE DISTRICT OF COLUMBIA FROM DUTY ON TUESDAY, DECEMBER 24, 1929, MADE THE FOLLOWING STATEMENT:

"I HAVE TAKEN THE MATTER UP WITH THE COMPTROLLER GENERAL'S OFFICE AND AM ADVISED THAT UNDER 8 COMPTROLLER'S DECISIONS 235, ISSUED IN 1901, REGULAR AND PERMANENT EMPLOYEES, ALTHOUGH THEIR PAY IS MEASURED ON A PER DIEM BASIS, WILL BE ENTITLED TO RECEIVE A DAY'S PAY NOTWITHSTANDING THEY ARE EXCUSED FROM DUTY, AND THAT ONLY CASUAL EMPLOYEES, OF WHOM THERE ARE A VERY LIMITED NUMBER, IF ANY, WILL SUFFER A LOSS OF THEIR PAY ON THAT DAY THROUGH THE CLOSING OF THE DEPARTMENT OR ESTABLISHMENT.'

IN ACCORDANCE WITH THE DECISION OF THE COMPTROLLER OF THE TREASURY OF OCTOBER 22, 1901, AS INTERPRETED BY THE COMPTROLLER GENERAL AND THE ATTORNEY GENERAL, THE DEPARTMENT PAID PER DIEM EMPLOYEES IN THE FIELD SERVICES OF THE NAVY DEPARTMENT AND MARINE CORPS FOR DECEMBER 24, 1929, AND FOR ALL OTHER DAYS SUBSEQUENT THERETO ON WHICH SUCH ACTIVITIES WERE CLOSED BY EXECUTIVE ORDER AND EMPLOYEES EXCUSED FROM DUTY.

PER DIEM EMPLOYEES IN THE FIELD SERVICES OF THE NAVY DEPARTMENT AND MARINE CORPS ARE EMPLOYED FOR INDEFINITE PERIODS AND ARE REQUIRED TO WORK A FIXED NUMBER OF HOURS PER DAY, WHICH ARE PRESCRIBED IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICES OF THE NAVY DEPARTMENT AND MARINE CORPS. IN THIS CONNECTION, ATTENTION IS INVITED TO SECTION 4 OF THE EXECUTIVE ORDER OF JULY 9, 1936,PRESCRIBING REGULATIONS RELATING TO ANNUAL LEAVE OF GOVERNMENT EMPLOYEES, WHICH PROVIDES THAT "EMPLOYEES APPOINTED FOR AN INDEFINITE PERIOD SHALL INCLUDE THOSE IN THE FIELD SERVICE EMPLOYED AT MANUFACTURING AND REPAIR ESTABLISHMENTS, SUCH AS NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, ARSENALS, ETC.'

IT IS THE UNDERSTANDING OF THE DEPARTMENT THAT UNDER THE DECISION OF THE COMPTROLLER OF THE TREASURY OF OCTOBER 22, 1901, AS INTERPRETED BY THE COMPTROLLER GENERAL AND THE ATTORNEY GENERAL, PER DIEM EMPLOYEES UNDER THIS DEPARTMENT WILL BE ENTITLED TO PAY FOR DECEMBER 24, 1937, ON WHICH DAY NAVY YARDS AND OTHER ACTIVITIES IN THE FIELD SERVICES OF THE NAVY DEPARTMENT AND MARINE CORPS WILL BE CLOSED AND EMPLOYEES EXCUSED FROM DUTY BY EXECUTIVE ORDER OF DECEMBER 6, 1937 (7763). HOWEVER, IN VIEW OF YOUR DECISION OF NOVEMBER 26, 1937, THE DEPARTMENT IS WITHHOLDING INSTRUCTIONS AS TO THE PAY STATUS OF PER DIEM EMPLOYEES ON DECEMBER 24, 1937, PENDING YOUR DECISION IN THE PREMISE.

EXECUTIVE ORDER NO. 7763, DATED DECEMBER 6, 1937, PROVIDES 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 ALL DAY ON FRIDAY, DECEMBER 24, 1937, THE DAY PRECEDING CHRISTMAS 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 ON THAT DAY.

THERE IS INVOLVED THE QUESTION WHETHER PER DIEM EMPLOYEES OF THE FEDERAL GOVERNMENT ARE ENTITLED TO PAY FOR DAYS DECLARED NONWORKDAYS OR HOLIDAYS BY EXECUTIVE ORDER, AS DISTINGUISHED FROM HOLIDAYS DECLARED BY STATUTE OR NONWORKDAYS, FOR WHICH PAY IS SPECIFICALLY AUTHORIZED BY STATUTE.

IN MY DECISION OF NOVEMBER 26, 1937, A-90524 (17 COMP. GEN. 445), TO WHICH YOU CALL ATTENTION, IT WAS STATED:

* * * WHEN AN EXECUTIVE ORDER CLOSES AN OFFICE AND EXCUSES EMPLOYEES FROM DUTY AN ENTIRE DAY AND NO WORK IS PERFORMED ON THAT DAY AND THE DAY IS NOT CHARGED TO ANNUAL LEAVE, PER DIEM EMPLOYEES ARE NOT ENTITLED TO COMPENSATION. * * *

AND IN MY DECISION OF DECEMBER 30, 1936 (16 COMP. GEN. 625, 627), IT WAS HELD THAT AN EXECUTIVE ORDER CANNOT OPERATE TO GRANT COMPENSATION TO WHICH EMPLOYEES ARE NOT OTHERWISE ENTITLED BY LAW UNDER THEIR APPOINTMENTS OR CONTRACTS OF EMPLOYMENT. (SEE ALSO 17 COMP. GEN. 298, 300.)

AN EXAMINATION OF THE DECISION OF A FORMER COMPTROLLER OF THE TREASURY DATED OCTOBER 22, 1901 (8 COMP. DEC. 235), FROM THE SYLLABUS OF WHICH YOU HAVE QUOTED, DISCLOSES THAT THE BASIS FOR THE HOLDING THAT THE PARTICULAR CLASS OF EMPLOYEES THEREIN REFERRED TO WERE ENTITLED TO PAY FOR CERTAIN DAYS ON WHICH THE OFFICE WAS CLOSED BY EXECUTIVE ORDER WAS THAT THEY WERE NOT PER DIEM EMPLOYEES AND THAT SAID DECISION DID NOT REVERSE OR MODIFY THE DECISION OF OCTOBER 14, 1901 (8 COMP. DEC. 219), IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE PAYMENT OF PER DIEM EMPLOYEES FOR DAYS ON WHICH THE DEPARTMENTS ARE CLOSED AND PUBLIC WORK SUSPENDED BY EXECUTIVE ORDER IS NOT AUTHORIZED UNLESS THEY ACTUALLY RENDER SERVICE ON THOSE DAYS.

IT MAY BE STATED, ALSO, THAT THE DEFINITION OF A PER DIEM EMPLOYEE AS GIVEN IN THE DECISION OF OCTOBER 22, 1901, SUPRA, WITH REFERENCE TO CERTAIN CLASSES OF EMPLOYEES IN THE GOVERNMENT PRINTING OFFICE, HAS NOT BEEN GENERALLY ACCEPTED IN THE APPLICATION OF THE STATUTES RELATING TO PAYMENT OF PER DIEM EMPLOYEES FOR HOLIDAYS.

IN DECISION OF THE LAST COMPTROLLER OF THE TREASURY, DATED FEBRUARY 28, 1916 (22 COMP. DEC. 425, 426), IT WAS STATED:

PER DIEM EMPLOYEES IN THE FIELD RECEIVE PAY WITHOUT WORK FOR SUCH HOLIDAYS ONLY AS THE LAW GRANTS PAY THEREFOR WITHOUT WORK. THEY RECEIVE PAY FOR OTHER DAYS IF THEY WORK. AN ORDER CAN STOP WORK, BUT THE LAW SAYS WHEN PAY ACCRUES WITHOUT WORK. NO LAW GIVES A PER DIEM EMPLOYEE PAY FOR A DAY HIS WORK IS STOPPED BY ORDER. HE IS PAID FOR THE DAYS HE WORKS AND ONLY FOR SUCH DAYS HE DOES NOT WORK AS THE LAW HAS GRANTED GRATUITY PAY THEREFOR.

THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES IN HIS DECISION OF OCTOBER 11, 1921 (1 COMP. GEN. 210, 211), HELD:

IN GENERAL, THE REGULAR PERMANENT EMPLOYEES OF THE GOVERNMENT ARE UNDER OBLIGATION TO RENDER EXTRA SERVICES WITHOUT EXTRA COMPENSATION. SEE SECTION 7, ACT OF MARCH 15, 1898, 30 STAT. 316. SUCH EMPLOYEES, THEREFORE, LOGICALLY RECEIVE THEIR REGULAR PAY EVEN WHEN BY REASON OF A STATUTORY OR EXECUTIVE-ORDER HOLIDAY THEIR SERVICES ARE NOT REQUIRED. FROM THIS GENERAL BODY OF GOVERNMENT EMPLOYEES, HOWEVER, THE PARTICULAR CLASS NOW UNDER CONSIDERATION IS SHARPLY DISTINGUISHED. THEY ARE UNDER NO OBLIGATION TO RENDER EXTRA SERVICE WITHOUT EXTRA COMPENSATION BUT ON THE CONTRARY WHEN SUCH EXTRA SERVICE IS REQUIRED NOT ONLY MUST EXTRA COMPENSATION BE PAID THEREFOR BUT SUCH EXTRA COMPENSATION MUST BE AT A HIGHER RATE THAN THEIR REGULAR PAY. THIS EXPRESS CONTRACT RIGHT TO EXTRA PAY AT A HIGHER RATE FOR ALL SERVICES RENDERED OUTSIDE OF REGULAR BUSINESS HOURS IS INCONSISTENT WITH THE EXISTENCE OF ANY IMPLIED RIGHT UNDER THE CONTRACT TO RECEIVE PAY WITHOUT RENDERING SERVICE IN SUCH OUTSIDE TIME. SUCH A RIGHT COULD ARISE ONLY BY DIRECT STATUTORY GRANT. JOINT RESOLUTIONS OF JANUARY 6, 1885, 23 STAT., 516, AND FEBRUARY 23, 1887, 24 STAT. 644, CONTAIN SUCH DIRECT GRANT TO PER DIEM EMPLOYEES GENERALLY IN RESPECT TO CERTAIN SPECIFIED HOLIDAYS; BUT THEY HAVE NO APPLICATION TO THE PRESENT CASE.

ALSO, IN DECISION OF NOVEMBER 29, 1922, 2 COMP. GEN. 366, IT WAS HELD (QUOTING FROM THE SYLLABUS) AS FOLLOWS:

PER DIEM EMPLOYEES OF THE OFFICE OF PUBLIC BUILDINGS AND GROUNDS WHO PERFORMED NO SERVICES ON ARMISTICE DAY, NOVEMBER 11, 1921, ARE NOT ENTITLED TO COMPENSATION FOR THAT DAY IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR. EXECUTIVE ORDER OF MAY 19, 1922, HAVING BEEN ISSUED AFTER THEIR RIGHTS AS TO PAY FOR THAT DAY HAD BECOME FIXED IS INEFFECTIVE TO PLACE THEM IN A PAY STATUS.

PAY FOR ARMISTICE DAY, NOVEMBER 11, 1921, WAS NOT AUTHORIZED FOR PER DIEM EMPLOYEES UNTIL THE ENACTMENT OF PUBLIC RESOLUTION APPROVED MARCH 3, 1923, 42 STAT. 1444. SEE, ALSO, DECISION OF APRIL 23, 1929, 8 COMP. GEN. 558, DENYING PAY TO PER DIEM EMPLOYEES OF NAVY YARDS FOR MARCH 4, 1929, INAUGURATION DAY. PAY FOR THIS HOLIDAY WAS NOT AUTHORIZED UNTIL THE ENACTMENT OF PUBLIC RESOLUTION APPROVED JUNE 27, 1930, 46 STAT. 826. SEE 10 COMP. GEN. 77. ALSO, THE CONGRESS MORE RECENTLY HAS SPECIFICALLY AUTHORIZED PAYMENT OF COMPENSATION TOPER DIEM EMPLOYEES FOR CERTAIN OTHER DAYS WHEN PUBLIC BUSINESS WAS SUSPENDED. SEE JOINT RESOLUTION OF JUNE 20, 1936, 49 STAT. 1568, CONSIDERED IN 16 COMP. GEN. 603, AND PUBLIC RESOLUTION OF MARCH 29, 1937, 50 STAT. 56, CONSIDERED IN 16 COMP. GEN. 912 AND 1120.

THE 40-HOUR WEEK STATUTE, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES AS FOLLOWS:

THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

THIS STATUTE REDUCED THE HOURS OF WORK OF CERTAIN PER DIEM EMPLOYEES WITH NO REDUCTION IN THEIR RATES OF PAY AND SPECIFICALLY REQUIRES PAYMENT OF "NOT LESS THAN TIME AND ONE HALF" FOR OVERTIME WORK. SAID STATUTE DID NOT RENDER INOPERATIVE THE SEVERAL STATUTES REQUIRING THE PAYMENT OF GRATUITY PAY TO PER DIEM EMPLOYEES FOR THE SEVEN LEGAL HOLIDAYS NAMED THEREIN. HENCE, EVEN WHEN ANY OF SUCH HOLIDAYS FALLS ON A NONWORK DAY (SUCH AS A SATURDAY), SUCH EMPLOYEES RECEIVE PAY FOR THE HOLIDAY WHEN NO WORK IS PERFORMED THEREON, IN ADDITION TO THE FULL WEEK'S PAY OTHERWISE EARNED, AND DOUBLE COMPENSATION FOR THE DAY IF WORK IS PERFORMED THEREON. DURING THE CALENDAR YEAR 1936 NAVY YARD PER DIEM EMPLOYEES, AS WELL AS OTHER PER DIEM EMPLOYEES OF THE GOVERNMENT TO WHOM THE 40-HOUR WEEK STATUTE IS APPLICABLE, WERE PAID 3 DAYS' GRATUITY PAY UNDER THE HOLIDAY STATUTES, OVER AND ABOVE THEIR FULL EARNINGS FOR THE YEAR, BY REASON OF THE FACT THAT FEBRUARY 22, MAY 30, AND JULY 4, 1936, FELL ON SATURDAY, NONWORKDAYS. SEE 15 COMP. GEN. 700; ID. 809. IT IS NOTED IN THIS CONNECTION THAT DECEMBER 25, 1937, AND JANUARY 1, 1938, EACH WILL FALL ON A SATURDAY.

NOTWITHSTANDING THE FACT THAT CREDIT MAY HAVE BEEN ALLOWED FOR CERTAIN PAYMENTS MADE TO PER DIEM EMPLOYEES FOR DECEMBER 24, 1929, AND POSSIBLY FOR SOME OTHER DAYS ON WHICH THE ACTIVITIES WERE CLOSED BY EXECUTIVE ORDER, I AM CONSTRAINED TO HOLD THAT, IN VIEW OF THE STATUTES AND DECISIONS ABOVE CITED, PER DIEM EMPLOYEES WHO PERFORM NO SERVICE ON DECEMBER 24, 1937, ARE NOT ENTITLED TO PAY THEREFOR IN THE ABSENCE OF A STATUTE SPECIFICALLY AUTHORIZING PAYMENT TO THEM FOR THAT DAY.