A-98026, SEPTEMBER 27, 1938, 18 COMP. GEN. 259

A-98026: Sep 27, 1938

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ARE NEVERTHELESS. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF AUGUST 19. PIECE WORK EMPLOYEES WHO ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY. IN THIS CONNECTION ATTENTION IS INVITED TO THE PROVISIONS OF THE ACT OF AUGUST 23. IT WILL BE NOTED THAT UNDER THE AMENDATORY LEGISLATION CUSTODIAL EMPLOYEES OF THIS DEPARTMENT ARE SUPPOSED TO RECEIVE PAY FOR EACH HOLIDAY (EXCEPT SUNDAY) UPON WHICH WORK IS NOT REQUIRED OF THEM. YOUR ATTENTION IS INVITED TO PUBLIC RESOLUTION NO. 127. INASMUCH AS SOME CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO ARE PAID AT AN HOURLY RATE ARE SPECIFICALLY AUTHORIZED WHEN APPOINTED TO PERFORM SERVICES ON HOLIDAYS.

A-98026, SEPTEMBER 27, 1938, 18 COMP. GEN. 259

HOLIDAY COMPENSATION - HOLIDAYS OCCURRING WITH A PERIOD OF LEAVE OF ABSENCE - POST OFFICE DEPARTMENT CHARWOMEN CHARWOMEN OF THE POST OFFICE DEPARTMENT WHOSE APPOINTMENTS OR AGREEMENTS OF EMPLOYMENT, AUTHORIZE OR REQUIRE THEM TO WORK ON HOLIDAYS, ALTHOUGH NOT ENTITLED TO PAY UNDER THE HOLIDAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, FOR A HOLIDAY FALLING WITHIN A PERIOD OF LEAVE OF ABSENCE WITH PAY, ARE NEVERTHELESS, BY REASON OF THE NATURE OF THEIR EMPLOYMENT, ENTITLED TO PAY FOR THE HOLIDAY UNDER THE APPLICABLE STATUTES AUTHORIZING THE GRANTING TO SUCH EMPLOYEES OF ANNUAL AND SICK LEAVE WITH PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, SEPTEMBER 27, 1938:

YOUR LETTER OF SEPTEMBER 17, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF AUGUST 19, 1938 (A-97193), ADDRESSED TO THE SECRETARY OF WAR, RELATIVE TO THE HOLIDAY PAY OF PER DIEM, PER HOUR, AND PIECE WORK EMPLOYEES WHO ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY. IN THIS CONNECTION ATTENTION IS INVITED TO THE PROVISIONS OF THE ACT OF AUGUST 23, 1935, PUBLIC NO. 308, 74TH CONGRESS, AMENDING THE PROVISIONS OF 5 U.S.C. 673. IT WILL BE NOTED THAT UNDER THE AMENDATORY LEGISLATION CUSTODIAL EMPLOYEES OF THIS DEPARTMENT ARE SUPPOSED TO RECEIVE PAY FOR EACH HOLIDAY (EXCEPT SUNDAY) UPON WHICH WORK IS NOT REQUIRED OF THEM. FINALLY, YOUR ATTENTION IS INVITED TO PUBLIC RESOLUTION NO. 127, 75TH CONGRESS, APPROVED JUNE 29, 1938, RELATING TO THIS SUBJECT.

INASMUCH AS SOME CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO ARE PAID AT AN HOURLY RATE ARE SPECIFICALLY AUTHORIZED WHEN APPOINTED TO PERFORM SERVICES ON HOLIDAYS, IT WILL BE APPRECIATED IF YOU WILL ADVISE AT AN EARLY DATE WHETHER SUCH EMPLOYEES WOULD BE ELIGIBLE TO RECEIVE PAY FOR ANY HOLIDAYS OCCURRING DURING A GRANT OF LEAVE OF ABSENCE.

THE ACT OF AUGUST 23, 1935, 49 STAT. 724, PROVIDES AS FOLLOWS:

CHARWOMEN AND HEAD CHARWOMEN SHALL RECEIVE FOR EACH HOLIDAY (EXCEPT SUNDAY) UPON WHICH UNDER EXISTING LAW NO WORK IS PERFORMED BY THEM AN AMOUNT EQUAL TO THE AMOUNT THEY WOULD RECEIVE HAD THEY PERFORMED THE SAME NUMBER OF HOURS OF WORK ON SUCH HOLIDAY AS THE AVERAGE NUMBER OF HOURS OF WORK PERFORMED BY THEM DURING THE DAYS IN THE WEEK IN WHICH SUCH HOLIDAY OCCURS.

IT IS PROVIDED IN PUBLIC RESOLUTION NO. 127, DATED JUNE 29, 1938, 52 STAT. 1246, AS FOLLOWS:

RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C. TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISION OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

AS CHARWOMEN ARE "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE * * * PER HOUR," THE LATER STATUTE IS APPLICABLE TO THEM, SECTION 2 OF WHICH REPEALS THE FORMER STATUTE.

THE ACT OF 1938 AUTHORIZES PAY FOR HOLIDAYS ONLY WHEN THE EMPLOYEES ARE "RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY.' AN EMPLOYEE ON LEAVE ON A HOLIDAY IS RELIEVED OR PREVENTED FROM WORKING BECAUSE HE IS ON LEAVE AND NOT AVAILABLE FOR WORK AND "NOT SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY.' ACCORDINGLY, THE HOLIDAY STATUTE OF JUNE 29, 1938, DOES NOT AUTHORIZE PAY FOR HOLIDAYS OCCURRING WITHIN A PERIOD OF LEAVE, WHETHER OR NOT THE EMPLOYEES ARE AUTHORIZED OR REQUIRED TO WORK ON HOLIDAYS.

IF AN EMPLOYEE IS ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF LEAVE OF ABSENCE WITH PAY--- IT BEING ASSUMED YOUR INQUIRY RELATES TO LEAVE OF ABSENCE WITH PAY--- IT MUST BE UNDER THE TERMS OF THE LEAVE STATUTES AND REGULATIONS APPLICABLE TO THEM. DECISION OF AUGUST 29, 1938, A-97265, 18 COMP. GEN. 206.

YOU DO NOT STATE WHETHER THE CHARWOMEN IN QUESTION ARE IN THE DEPARTMENTAL SERVICE OR IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT. IF THE FORMER, THEIR LEAVE IS CONTROLLED BY THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162. IF THEY ARE IN THE POSTAL SERVICE, THEIR LEAVE IS CONTROLLED BY THE ACT OF MAY 17, 1928, 45 STAT. 595, AS AMENDED. UNDER ALL OF THESE STATUTES THERE IS AUTHORIZED THE GRANTING OF ANNUAL AND SICK LEAVE WITH PAY. THEREFORE, IF THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT OF THE EMPLOYEES TO WHICH YOU REFER AUTHORIZE OR REQUIRE THEM TO WORK ON HOLIDAYS, AS YOU STATE, SUCH HOLIDAYS ARE REGULAR PAY DAYS, AND THE EMPLOYEES MAY BE PAID THEIR REGULAR PAY FOR THE HOLIDAYS OCCURRING WITHIN A DULY AUTHORIZED PERIOD OF LEAVE OF ABSENCE WITH PAY.