B-100674, FEBRUARY 8, 1951, 30 COMP. GEN. 344

B-100674, FEBRUARY 8, 1951, 30 COMP. GEN. 344

HOLIDAY COMPENSATION - PER DIEM EMPLOYEES - TRANSFER FROM TEMPORARY TO PERMANENT POSITION REGULAR EMPLOYEES COMPENSATED ON A PER DIEM BASIS WHO ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF A HOLIDAY ARE ENTITLED TO HOLIDAY COMPENSATION UNDER THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, AND THEREFORE PER DIEM EMPLOYEES WHO WERE CONVERTED FROM TEMPORARY TO PERMANENT STATUS, EFFECTIVE ON LABOR DAY, 1950, BECAME PERMANENT EMPLOYEES ON THAT DAY, AND HAVING BEEN IN A PAY STATUS ON THE WORKDAYS IMMEDIATELY PRECEDING AND FOLLOWING THE HOLIDAY, PROPERLY MAY BE CONSIDERED AS HAVING BEEN PREVENTED FROM WORKING SOLELY BY REASON OF THE HOLIDAY AND MAY BE PAID THEIR REGULAR COMPENSATION FOR THAT DAY.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 8, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1951, REQUESTING DECISION WHETHER HOLIDAY PAY SHOULD BE PAID TO A NUMBER OF PER DIEM EMPLOYEES AT THE PORTSMOUTH NAVAL SHIPYARD FOR SEPTEMBER 4, 1950, LABOR DAY, ON WHICH DAY THE EMPLOYEES IN QUESTION WERE CONVERTED FROM A TEMPORARY TO A PERMANENT STATUS.

THE RIGHT OF PER DIEM EMPLOYEES TO HOLIDAY PAY FOR A HOLIDAY ON WHICH NO WORK IS PERFORMED IS GOVERNED BY SECTION 1 OF PUBLIC RESOLUTION, JUNE 29, 1938, 52 STAT. 1246, WHICH 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, 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.

THE APPLICATION OF THAT STATUTE IS DETERMINED BROADLY UPON TWO POINTS: FIRST, WHETHER THE EMPLOYEES ARE REGULAR EMPLOYEES, AND SECOND, WHETHER THEY ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF SUCH HOLIDAY. UPON THE FIRST POINT IT HAS BEEN HELD REPEATEDLY THAT TEMPORARY EMPLOYEES ARE NOT REGULAR EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY ACT. 25 COMP. GEN. 407, 715, AND 794. WITH RESPECT TO THE SECOND POINT, IN 24 COMP. GEN. 843, IT WAS HELD THAT PAYMENT FOR A HOLIDAY COULD NOT BE MADE UNLESS THE EMPLOYEE WAS IN A PAY STATUS IMMEDIATELY BEFORE AND FOLLOWING THE HOLIDAY.

APPOINTMENTS NEED NOT BE MADE EFFECTIVE ON A WORKDAY BUT MAY BE MADE ON A HOLIDAY OR SUNDAY IF THE EMPLOYEE REPORTS FOR DUTY ON THE FIRST WORKDAY THEREAFTER. 26 COMP. GEN. 604. THE PER DIEM EMPLOYEES HERE INVOLVED WHO WERE CONVERTED FROM TEMPORARY TO PERMANENT STATUS EFFECTIVE SEPTEMBER 4, 1950, BECAME PERMANENT EMPLOYEES ON THAT DATE AND HAVING BEEN IN A PAY STATUS ON THE WORKDAYS IMMEDIATELY PRECEDING AND FOLLOWING THE HOLIDAY THEY PROPERLY MAY BE CONSIDERED AS HAVING BEEN PREVENTED FROM WORKING SOLELY BY REASON OF THE HOLIDAY AND MAY BE PAID THEIR REGULAR COMPENSATION FOR THAT DAY.