A-98756, OCTOBER 31, 1938, 18 COMP. GEN. 403

A-98756: Oct 31, 1938

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COMPENSATION - HOLIDAYS OCCURRING WITHIN PERIODS OF MILITARY OR JURY LEAVE - PER DIEM EMPLOYEES REGULAR EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY. ARE ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF MILITARY. IF THEY WOULD HAVE BEEN ENTITLED TO PAY FOR THE HOLIDAY UNDER THE NEW HOLIDAY STATUTE OF JUNE 29. TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY. IS AS FOLLOWS: PUBLIC RESOLUTION NO. 127. PROVIDES: "THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY. 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.

A-98756, OCTOBER 31, 1938, 18 COMP. GEN. 403

COMPENSATION - HOLIDAYS OCCURRING WITHIN PERIODS OF MILITARY OR JURY LEAVE - PER DIEM EMPLOYEES REGULAR EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, ARE ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF MILITARY, OR JURY, LEAVE UNDER THE NATIONAL GUARD, OFFICERS' RESERVE CORPS, AND NAVAL RESERVE MILITARY LEAVE ACTS OF JUNE 3, 1916, 39 STAT. 203, MAY 12, 1917, 40 STAT. 72, AND JUNE 25, 1938, 52 STAT. 1177, AND THE JURY LEAVE ACT OF AUGUST 22, 1935, 49 STAT. 662, IF THEY WOULD HAVE BEEN ENTITLED TO PAY FOR THE HOLIDAY UNDER THE NEW HOLIDAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, HAD THEY REMAINED IN A DUTY STATUS AND BEEN PREVENTED OR RELIEVED FROM WORKING ON THE HOLIDAY, BUT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, OCTOBER 31, 1938:

YOUR LETTER OF OCTOBER 20, 1938, IS AS FOLLOWS:

PUBLIC RESOLUTION NO. 127, 75TH CONGRESS, APPROVED JUNE 29, 1938, PROVIDES:

"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 PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'

IN THE ACTING COMPTROLLER GENERAL'S DECISION TO THE SECRETARY OF WAR OF AUGUST 19, 1938 (18 COMP. GEN. 186), IT WAS HELD THAT UNDER THE TERMS OF PUBLIC RESOLUTION NO. 127, IF REGULAR PER DIEM, PER HOUR, OR PIECE-WORK EMPLOYEES "ARE RELIEVED OR PREVENTED FROM WORKING ON THE HOLIDAY FOR ANY REASON OTHER THAN THE OCCURRENCE OF THE HOLIDAY, SUCH AS WHEN THE HOLIDAY OCCURS ON A NON-WORK DAY, OR WITHIN A PERIOD OF FURLOUGH OR LEAVE OF ABSENCE, NO PAY FOR THE HOLIDAY AS SUCH IS AUTHORIZED.' IN THIS CONNECTION YOUR DECISION IS REQUESTED ON THE QUESTION WHETHER OR NOT EMPLOYEES, WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, ARE ENTITLED TO BE PAID FOR HOLIDAYS OCCURRING WITHIN A PERIOD OF AUTHORIZED ABSENCE FROM DUTY PURSUANT TO THE PROVISIONS OF ANY OF THE FOLLOWING ACTS:

(A) ACT OF JUNE 3, 1916, SECTION 80 (39 STAT. 203; 32 U.S.C., 75).

"ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE NATIONAL GUARD SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT.'

(B) ACT OF MAY 12, 1917 (49 STAT. 72; 10 U.S.C., 371).

"* * * THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.'

(C) ACT OF AUGUST 22, 1935 (49 STAT. 682; 18 D.C. CODE, SUPP. III, 360).

"* * * PROVIDED, THAT EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA IN ACTIVE SERVICE WHO ARE CALLED UPON TO SIT ON JURIES SHALL NOT BE PAID FOR SUCH JURY SERVICE BUT THEIR SALARY SHALL NOT BE DIMINISHED DURING THEIR TERM OF SERVICE BY VIRTUE OF SUCH SERVICE, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM ANY LEAVE OF ABSENCE AUTHORIZED BY W.'

(D) ACT OF JUNE 25, 1938, SECTION 9 (PUBLIC NO. 732--- 75TH CONGRESS, 52 STAT. 1177).

"* * * PROVIDED, THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING ON ALL DAYS DURING WHICH THEY MAY BE EMPLOYED WITH OR WITHOUT PAY UNDER THE ORDERS OR AUTHORIZATION OF COMPETENT AUTHORITY, ON TRAINING DUTY FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.'

IN DECISION OF OCTOBER 25, 1938, A-97193, IT WAS HELD AS FOLLOWS:

THE NEW HOLIDAY STATUTE APPROVED JUNE 29, 1938, 52 STAT. 1246, DOES NOT OF ITSELF CAUSE A REDUCTION IN THE COMPENSATION ANY REGULAR PER DIEM EMPLOYE ON A 5-DAY, 40-HOUR WEEK BASIS IS ENTITLED TO RECEIVE IN ANY WEEK IN WHICH A HOLIDAY OCCURS, EITHER WHILE ON DUTY OR WHILE ON AUTHORIZED LEAVE OF ABSENCE WITH PAY.'

THE STATUTES DESIGNATED IN YOUR LETTER AS (A), (B), AND (D) GRANT MILITARY LEAVE OF ABSENCE ,WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING" AND THE STATUTE DESIGNATED IN YOUR LETTER AS (C) PROVIDES THAT THE SALARY OF EMPLOYEES "SHALL NOT BE DIMINISHED" DURING JURY SERVICE. HENCE, IF THE EMPLOYEES REFERRED TO WOULD BE ENTITLED TO PAY FOR A HOLIDAY HAD THEY REMAINED IN A DUTY STATUS, AND BEEN PREVENTED OR RELIEVED FROM WORKING ON THE HOLIDAY, THEY WOULD BE ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF MILITARY OR JURY LEAVE UNDER THE QUOTED STATUTE. THAT IS, SUCH EMPLOYEES WOULD BE ENTITLED TO EXACTLY THE SAME AMOUNT OF COMPENSATION FOR A PERIOD OF AUTHORIZED MILITARY OR JURY LEAVE WITH PAY THAT THEY WOULD HAVE RECEIVED FOR THE SAME PERIOD HAD THEY REMAINED IN A DUTY STATUS IN THEIR CIVILIAN POSITIONS. IT IS TO BE UNDERSTOOD, OF COURSE, THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY. 16 COMP. GEN. 105, ID. 119.