A-99038, NOVEMBER 9, 1938, 18 COMP. GEN. 429

A-99038: Nov 9, 1938

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- WOULD BE ENTITLED TO THE SAME PAY FOR THE 2 WEEKS IN WHICH THE LEAVE WITH PAY OCCURRED THAT HE WOULD HAVE RECEIVED IF HE HAD REMAINED ON DUTY. THAT IS. FULL PAY IF FULL TIME WAS WORKED ON THE WORK-WEEK WORK DAYS PRECEDING AND FOLLOWING THE LEAVE WITH PAY. NOTWITHSTANDING ANNUAL LEAVE WOULD BE CHARGED FOR ONLY 3 DAYS OF THE 5-DAY PERIOD OF ABSENCE AS THE SUNDAY AND HOLIDAY INVOLVED ARE EXCLUDED IN COMPUTING THE TIME FOR CHARGING AGAINST ANNUAL LEAVE. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF OCTOBER 25. IN WHICH IS CLARIFIED THAT PART OF YOUR DECISION OF AUGUST 29. IF AN EMPLOYEE IS ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN OR AT EITHER END OF AN ABSENCE ON ANNUAL OR SICK LEAVE WITH PAY.

A-99038, NOVEMBER 9, 1938, 18 COMP. GEN. 429

COMPENSATION AND LEAVE CHARGES - HOLIDAYS OCCURRING WITHIN PERIOD OF ANNUAL LEAVE - PERMANENT PER DIEM EMPLOYEES A PERMANENT PER DIEM EMPLOYEE ON A 40-HOUR, 5-DAY WEEK (MONDAY TO FRIDAY) ON ANNUAL LEAVE UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, ON SEPTEMBER 2, 3 (SATURDAY, A NON-WORK DAY), AND 6, 1938--- MONDAY, SEPTEMBER 5, 1938, BEING A HOLIDAY--- WOULD BE ENTITLED TO THE SAME PAY FOR THE 2 WEEKS IN WHICH THE LEAVE WITH PAY OCCURRED THAT HE WOULD HAVE RECEIVED IF HE HAD REMAINED ON DUTY, THAT IS, FULL PAY IF FULL TIME WAS WORKED ON THE WORK-WEEK WORK DAYS PRECEDING AND FOLLOWING THE LEAVE WITH PAY, NOTWITHSTANDING ANNUAL LEAVE WOULD BE CHARGED FOR ONLY 3 DAYS OF THE 5-DAY PERIOD OF ABSENCE AS THE SUNDAY AND HOLIDAY INVOLVED ARE EXCLUDED IN COMPUTING THE TIME FOR CHARGING AGAINST ANNUAL LEAVE. A 97193, OCTOBER 25, 1938, 18 COMP. GEN. 378, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 9, 1938:

YOUR LETTER OF NOVEMBER 3, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF OCTOBER 25, 1938, A-97193, TO THE SECRETARY OF WAR, IN WHICH IS CLARIFIED THAT PART OF YOUR DECISION OF AUGUST 29, 1938, A-97265, WHICH READS IN PART AS FOLLOWS:

"* * * THE RIGHT TO PAY FOR HOLIDAYS UNDER THIS STATUTE SHOULD NOT BE CONFUSED WITH RIGHTS UNDER LEAVE STATUTES AND REGULATIONS. IF AN EMPLOYEE IS ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN OR AT EITHER END OF AN ABSENCE ON ANNUAL OR SICK LEAVE WITH PAY, IT MUST BE BECAUSE OF (AND ONLY IN ACCORDANCE WITH) THE LEAVE STATUTES AND REGULATIONS AND NOT BECAUSE OF THIS STATUTE. * * *"

IT IS UNDERSTOOD FROM YOUR DECISION OF OCTOBER 25TH, SUPRA, THAT HOLIDAYS OCCURRING WITHIN A PERIOD OF SICK LEAVE OF EITHER A PERMANENT OR TEMPORARY PER DIEM EMPLOYEE AND WITHIN A PERIOD OF ANNUAL LEAVE OF A TEMPORARY PER DIEM EMPLOYEE, ARE TO BE TREATED NOT ONLY AS LEAVE DAYS PURSUANT TO THE LEAVE REGULATIONS, BUT ALSO AS LEAVE PAY DAYS, SUBJECT, HOWEVER, TO THE HOLIDAY OCCURRING WITHIN THE REGULAR TOUR OF DUTY OF THE EMPLOYEE.

IN THE CASE OF A PERMANENT PER DIEM EMPLOYEE, THE INSTRUCTIONS INSECTION 11 OF THE EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, EXPRESSLY PROHIBIT THE CHARGING OF SUNDAYS AND HOLIDAYS AGAINST THE ANNUAL LEAVE OF THE EMPLOYEE. THIS PROHIBITION AGAINST CHARGING PERMANENT PER DIEM EMPLOYEES WITH A HOLIDAY AS A "LEAVE DAY" WOULD SEEM TO PRECLUDE PAYMENT UNDER THE LEAVE STATUTES AND REGULATIONS FOR ANY HOLIDAY OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE OF A PER DIEM EMPLOYEE.

IN VIEW OF YOUR DECISION OF OCTOBER 25TH, SUPRA, THE NAVY DEPARTMENT IS PREPARING TO MODIFY ADMINISTRATIVE INSTRUCTIONS WHICH DENIED BOTH PERMANENT AND TEMPORARY PER DIEM EMPLOYEES ON ANNUAL AND SICK LEAVE IMMEDIATELY BEFORE AND AFTER SEPTEMBER 5, 1938, LEAVE PAY FOR THE HOLIDAY OCCURRING ON THAT DATE. HOWEVER, BEFORE MODIFYING THE DEPARTMENT'S INSTRUCTIONS, A SPECIFIC DECISION IS REQUESTED ON THE FOLLOWING QUESTION:

"A PERMANENT PER DIEM EMPLOYEE WITH A REGULAR 40-HOUR TOUR OF DUTY RUNNING FROM MONDAY TO FRIDAY OF EACH WEEK APPLIED FOR 3 DAYS ANNUAL LEAVE ON SEPTEMBER 2ND, 3RD (A NON-WORK DAY) AND 6TH, 1938. MONDAY, SEPTEMBER 5, 1938, WAS A HOLIDAY AND, THEREFORE, COULD NOT BE CHARGED TO ANNUAL LEAVE UNDER EXECUTIVE ORDER NO. 7845. ONLY TWO LEAVE PAY DAYS ARE INVOLVED, SEPTEMBER 2ND AND 6TH AND, THEREFORE, THE QUESTION ARISES AS TO WHETHER ANY PAYMENTS CAN BE MADE TO THIS EMPLOYEE FOR THE HOLIDAY AND IF SO, WHETHER THE SAID PAYMENTS FOR THE HOLIDAY SHOULD BE CONSIDERED AS BEING MADE PURSUANT TO THE LEAVE STATUTE AND REGULATIONS OR UNDER THE HOLIDAY STATUTE ON THE THEORY THAT CONSTRUCTIVELY THE EMPLOYEE WAS PREVENTED FROM WORKING ON THE HOLIDAY SINCE LEAVE WITH PAY HAS BEEN HELD TO BE SYNONYMOUS WITH WORK (13 COMP. GEN. 370).'

YOUR EARLY DECISION IN THE PREMISES IS REQUESTED IN ORDER THAT APPROPRIATE ADMINISTRATIVE INSTRUCTIONS MAY BE RELEASED PRIOR TO NOVEMBER 11, 1938, THE DATE ON WHICH THE NEXT LEGAL HOLIDAY WILL OCCUR.

QUESTION 2 AND THE ANSWER THERETO IN DECISION OF OCTOBER 25, 1938, A- 97193, 18 COMP. GEN. 378, ARE AS FOLLOWS:

(2) ARE PERMANENT PER DIEM EMPLOYEES WORKING ON A 5-DAY 40-HOUR WEEK BASIS (MONDAY THROUGH FRIDAY) ENTITLED TO 1 DAY'S REGULAR PAY FOR A HOLIDAY FALLING ON A DAY OF THEIR REGULAR TOUR OF DUTY WHEN SUCH DAY OCCURS WITHIN A PERIOD OF LEAVE WITH PAY WHETHER THE LEAVE BE ANNUAL OR SICK (NOT AS PAY FOR THE HOLIDAY AS SUCH, BUT AS PAY FOR A DAY OF LEAVE/?

IN CONNECTION WITH QUESTION (2) ABOVE, IT IS UNDERSTOOD THAT HOLIDAYS OCCURRING WITHIN A PERIOD OF SICK LEAVE FOR PERMANENT PER DIEM EMPLOYEES ARE CHARGED AS DAYS OF SICK LEAVE, IN ACCORDANCE WITH SICK-LEAVE REGULATIONS PROMULGATED BY EXECUTIVE ORDER NO. 7846 OF MARCH 21, 1938, AND HOLIDAYS OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE FOR PERMANENT PER DIEM EMPLOYEES ARE NOT CHARGED AS DAYS OF ANNUAL LEAVE, IN ACCORDANCE WITH ANNUAL-LEAVE REGULATIONS PROMULGATED BY EXECUTIVE ORDER NO. 7845 OF MARCH 21, 1938.

QUESTION (2) IS ANSWERED IN THE AFFIRMATIVE.

THE UNDERSTANDING AS EXPRESSED IN YOUR LETTER IS CORRECT THAT IN THE CASE OF TEMPORARY EMPLOYEES, HOLIDAYS OCCURRING DURING A PERIOD OF EITHER SICK OR ANNUAL LEAVE ARE TO BE CHARGED AS DAYS OF LEAVE, AND THAT IN THE CASE OF PERMANENT EMPLOYEES, HOLIDAYS OCCURRING DURING A PERIOD OF SICK LEAVE ARE TO BE CHARGED AS DAYS OF LEAVE. IN THIS RESPECT THERE IS NO DISTINCTION BETWEEN PER ANNUM EMPLOYEES AND PER DIEM EMPLOYEES ON A 5-DAY WEEK BASIS.

IN THE CASE WHICH YOU NOW PRESENT THE EMPLOYEE WOULD BE ENTITLED TO THE SAME PAY FOR THE 2 WEEKS IN WHICH THE LEAVE WITH PAY OCCURRED THAT HE WOULD HAVE RECEIVED IF HE HAD REMAINED ON DUTY. THAT IS TO SAY, IF HE ACTUALLY WORKED FULL TIME FOR THE 4 DAYS PRECEDING SEPTEMBER 2 AND THE 3 DAYS FOLLOWING SEPTEMBER 6, HE WOULD BE ENTITLED TO FULL PAY FOR THE 2 WEEKS AND HIS ANNUAL LEAVE RECORD WOULD BE CHARGED WITH 3 DAYS--- THE PERIOD OF ABSENCE CONSISTING OF 5 DAYS AND THE SUNDAY AND HOLIDAY BEING EXCLUDED IN COMPUTING THE TIME FOR CHARGING AGAINST ANNUAL LEAVE.